author: George Howard, Jr., Judge. Steele Hays, Judge,

text:
    Danny ROLAX a/k/a Danny Bernard HAMILTON v. STATE of Arkansas
    CA CR 80-21
    603 S.W. 2d 903
    Court of Appeals of Arkansas
    Opinion delivered September 10, 1980

      E. Alvin Schay, State Appellate Defender, by: Deborah Davies Cross, Deputy Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   George Howard, Jr., Judge.

The appellant was found guilty of the offense of “Theft of Property” - Ark. Stat. Ann § 41-2203 (Repl. 1977) — having a value in excess of $100.00, by the court, sitting without a jury, and appellant was sentenced to the Department of Correction for a term of three years.

Section 41-2203, in relevant part, provides:

(1) A person commits theft of property if he:
(a) knowingly takes or exercises unauthorized control over . . . the property of another person, with the purpose of depriving the owner thereof;
(b) Theft of property if a class C felony if:
(i) the value of the property is less than $2500 but more than $100;. . .

On June 2, 1979, between 11:00 a.m. and 12:00 p.m. o’clock, an employee of M. M. Cohn Company, Robert Jackson, observed appellant leaving a conference area of the advertising department, located on the fourth floor. The employee approached appellant and asked why appellant was in the area since it was not open to the general public. Appellant stated that he had visited the store, the day before, seeking employment; that he had talked to an employee in the personnel department, which is located on the fifth floor, about a janitorial position and was told to return the following day; and that he had, while using the elevator, inadvertently gotten off on the wrong floor.

Upon entering the room that appellant had just exited, Mr. Jackson discovered a shopping bag on the floor containing merchandise from the retail department on the first floor — a man’s three piece suit and three pairs of women’s shoes.

It is conceded that Robert Jackson, Cohn’s employee, did not observe appellant in possession of the merchandise; and as a matter of fact, Mr. Jackson testified that when he first saw appellant, appellant was approximately 20 to 25 feet from where the shopping bag was located. Mr. Jackson testified, however, that he had been in the same area approximately three minutes before he observed appellant and that he did not see the shopping bag at that time.

The manager of Cohn’s was immediately summoned to the area by Mr. Jackson. Upon hearing appellant’s explanation for being on the fourth floor, the manager checked with the personnel office and was advised that there was no application for employment on file for appellant.

For reversal, appellant had tendered the following points:

1. There was no substantial evidence to prove appellant committed theft of property.
2. The trial court erred in failing to follow statutory procedures for consideration of sentencing of appellant under the youthful offender Alternative Service Act of 1975.
3. The trial court erred in allowing the state to refer in closing argument to a prior conviction of appellant not presented in evidence during trial.

We are persuaded that appellant’s first ground for reversal has merit and we, accordingly, reverse appellant’s conviction. The State assumes a heavy burden when circumstantial evidence alone is relied upon for a criminal conviction. It is plain that before such evidence may be deemed adequate to support a conviction, the evidence must exclude every other reasonable hypothesis consistent with the defendant’s innocence. Henley v. State, 255 Ark. 863, 503 S.W. 2d 478 (1974); Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458 (1969). It is also equally plain that the evidence must be something more than bare suspicion; it must be of a material nature and tends to connect the defendant with the crime. When a defendant’s guilt is predicated on conjecture and speculation, the evidence is insufficient to sustain his conviction. Upton v. State, 257 Ark. 424, 516 S.W. 2d 904 (1974); Jones v. State, supra.

Close scrutiny of the evidence in this proceeding dictates a finding that the evidence falls short of the standard that must be met in order to sustain appellant’s conviction.

As has already been noted, there is no evidence showing that appellant was ever in actual possession of the. shopping bag containing the merchandise. There is no proof that anyone else — including the employees of Cohn’s who, according to Mr. Jackson, readily had access to the fourth floor and the conference area — had not visited the area.

While the manager testified that he was told that there was no application for employment on file for appellant, appellant’s testimony was that an employee in the personnel department, the day before, simply advised him to return the following day when appellant inquired about employment. This bit of evidence is pivotal and tends to corroborate appellant’s testimony that he had visited the personnel office the previous day, Friday, for Mr. Jackson testified that the personnal office is generally closed on Saturdays and that he did not know whether the personnal office was opened on the' day in question or not. However, the manager testified that he went to the personnel office, upon hearing appellant’s explanation, to see if appellant had an application on file and was advised that there was no application. It seems clear that the evidence supports a finding that the office was open and appellant was endeavoring to comply with the instructions he had received the previous day.

While appellant’s conviction is being reversed on his first point for reversal, we deem it advisable to mention briefly his contention that the trial court erred in allowing the State to refer in closing argument to a prior conviction of appellant not presented in evidence during the trial.

In Williams v. State, 259 Ark. 667, 535 S.W. 2d 842 (1976), the Arkansas Supreme Court made the following relevant comment:

”. . . Closing arguments must be confined to questions in issue, the evidence introduced and all reasonable inferences and deductions which can be drawn therefrom. . . . Whenever,, trial counsel argues matters that áre beyond the record and states facts or makes assertions hot supported )z>y any evidence that are prejudicial/ to /the opposite party, there is clearly error. .. . ,
“When objection is made, the presiding judge should appropriately reprimand counsel and instruct the jury not to consider the statement, and in short, do everything possible to see that the verdict of the jury is neither produced nor influenced by such argument .... The failure to sustain a proper objection to argument of matters not disclosed by the record is serious error, because it gives the appearance that the improper argument has not only the sanction but the endorsement of the court . . . .”

Appellant argues convincingly:

“The prejudicial effect from the State’s closing comment was apparent from the final conclusion in the trial court’s opinion that it ‘was not convinced he [the appellant] was not there for the purpose of stealing . . .’, even though the actual evidence showing theft by appellant was very weak. The failure of the trial court to disregard this incompetent evidence was an error affecting the substantial right of appellant to have a fair trial, and should be noticed by this court, notwithstanding the absence of a proper objection by defense counsel. ...”

It must be remembered that under American Jurisprudence, every defendant who stands before the bar of a trial court, irregardless of how shocking or offense his conduct might have been, enjoys the presumption of innocence which may not be compromised or reduced to a mere formality. Our Supreme Court in articulating the fundamental nature of this right said in Williams v. State, supra:

“The presumption of innocence is so strong that it serves an accused as evidence in his favor throughout the trial and entitles him to an acquittal unless the state adduces evidence which convinces the jury beyond a reasonable doubt that he is guilty of the crime charged. ... It is a fundamental right in the American system antedating any constitution and an essential of due process of law. ... It alone puts in issue the truth and credibility of all of the evidence offered against an accused. . . ,”

Inasmuch as we have determined that the evidence introduced during the trial was insufficient to sustain appellant’s conviction, we reverse and dismiss this action. See: Polland v. State, 264 Ark. 753, 574 S.W. 2d 656 (1978); Burks v. U.S., 437 U.S. 1 (1978); Greene v. Massey, 437 U.S. 19 (1978).

Reversed and dismissed.

Hays, J., dissents.

Steele Hays, Judge,

dissenting. I feel compelled to disagree with the majority 'in reversing this case on an insufficiency of evidence. When the fundamental rules of appellate review are applied to this appeal, the only course open to us is affirmance of the conviction.

The evidence is circumstantial to be sure; however, direct proof of criminal conduct is lacking in a great many cases, perhaps the majority, but that should not become an ideological stumbling block to reasonable certainty. The dictum in those cases that refer to the prosecution assuming a “heavy burden” when circumstantial evidence is relied upon promotes the inference that the evidence of guilt must be greater in cases dependent on circumstantial evidence. This is not so and probably never has been, as no greater degree of certainty in proof is required where evidence is circumstantial than where it is direct, in either case it remains simply a matter of the judge or jury being convinced of the defendant’s guilt beyond a reasonable doubt. Caradine v. State, 189 Ark. 771, 75 S.W. 2d 671 (1934), Holland v. United States, 348 U.S. 121 (1954). In Caradine, the Supreme Court of Arkansas expressed the law in connection with an appeal similar to the one now before us:

The jury evidently believed the States’ witnesses, and, if they did, they could not believe the appellant’s witnesses, and it was a question for the jury, and not for this court.
We recently said: “The testimony was entirely circumstantial, but, if believed, it was sufficient to justify the jury in finding the appellant guilty. The jury are the judges of the credibility of the witnesses and the weight to be given their testimony. Therefore, in determining whether the evidence is sufficient to support the verdict, this court must consider the evidence in the light most favorable to the State, and, when this is done, it cannot be said that the evidence did not warrant the jury in returning the verdict of guilty.” O’Neal v. State, 179 Ark. 1153, 15 S.W. 2d 976.

Simmons v. State, 255 Ark. 82, 498 S.W. 2d 870 (1973), may be cited on the same point, where it was said that the law makes no distinction between circumstantial evidence and direct evidence from which the existence of a fact may be inferred.

In the case at bar, the trial court, sitting as the jury, presumably believed the testimony of Mr. Robert Jackson, a witness for the prosecution, and when that testimony is examined, if it is to be believed, no reasonable uncertainty of the defendant’s guilt can be entertained. Mr. Jackson’s testimony was that he had gone to the fourth floor of the department store where he was employed to take some samples, it being a Saturday when the fourth floor was closed to the public. The floor was dark except for stairway lighting and several windows around the perimeter of the building. Mr. Jackson examined an area just inside a doorway adjacent to the elevator and he observed nothing. Hearing a noise, he looked up and saw the defendant’s head disappearing through a window into an area used for storage. The room was also described as a closet area which opened onto a larger room where selected merchandise was kept for advertising purposes. Mr. Jackson went to a nearby office and called the security officer. He returned to the area and just as he arrived the defendant was emerging from the doorway just referred to. The witness asked the defendant what he was doing there and on opening the door he observed the shopping bag of merchandise immediately inside the doorway the defendant had just come through. He testified positively that the shopping bag had not been there moments earlier when he first examined the area. His testimony was that he and the defendant were the only persons on the fourth floor during the interval, which he estimated to be between three and four minutes, and that the area the defendant was seen, and emerged from, was dark. The shopping bag contained three pairs of ladies’ shoes and a man’s three-piece suit, size 39 regular.

In this own behalf, the defendant testified that he had come to the store for the purpose of seeking employment and had inadvertently gotten off on the wrong floor. He denied taking any merchandise or knowing anything about the shopping bag and he denied being in the storage area or in the room adjacent to it. His suit size he estimated at a 37 or 38 regular. Clearly, there was a considerable credibility gap between Mr. Jackson’s testimony as to the defendant’s whereabouts and the defendant’s own account, and the trial court resolved this conflict to its own satisfaction.

The majority is concerned that Mr. Jackson could not say that he saw the defendant holding the shopping bag. So be it. He did testify to a number of circumstances that point in only one direction.

(1) The defendant’s head was seen disappearing through a window in a storage area near where merchandise was kept.

(2) The area was dark.

(3) No shopping bag was seen at point A.

(4) Some three minutes later, the defendant and the shopping bag are seen at point A, the defendant emerging through the doorway, the shopping bag being just inside the doorway.

(5) No other persons were on the fourth floor except the witness and the defendant.

Giving these circumstances the “highest probative value” [Powell v. State, 213 Ark. 442, 210 S.W. 2d 909 (1948], leads to the conclusion that the conviction is founded on sufficient evidence and should not be overturned.

The rule is well settled that an appeal court does not attempt to weigh the evidence, as that is the function of the trial judge. Richards v. State, 266 Ark. 733, 585 S.W. 2d 375 (Ark. App. 1979).

Moreover, our duty on appeal is to weigh the evidence from its highest probative value in favor of the verdict. Powell v. State, supra. The reviewing court must accord every reasonable inference to support the verdict. Bone v. State, 198 Ark. 519, 129 S.W. 2d 240 (1939). When those rules are applied to this appeal, I believe the trial court had ample evidence to support the finding of guilt and I would affirm the conviction.

      In Hickey v. State, 263 Ark. 809, 569 S.W. 2d 64 (1978), the Supreme Court stated:
      We submit that because a case is tried before a trial judge without the aid and assistance of a jury, this does not, in the least, reduce the proceedings to an informal setting where the principles of law and justice are disregarded or perverted.

      In State v. Lawrence, 246 Ark. 644, 439 S.W. 2d 819 (1969), the Arkansas Supreme Court made the following pertinent comment:
      Since the errors asserted on this appeal are apparent on the face of the record, no objection, exceptions or motion for new trial was required before they could be reviewed here.

        See Also: Rule 103(a)(1), Arkansas’ Uniform Rules of Evidence.


source: Caselaw Access Project

author: John A. Fogieman, Chief Justice. Richard L. Mays, Justice, John F. Stroud, Justice,

license: Public Domain

text:
    Paul RIVIERE, Secretary of State v. John F. WELLS et al
    80-172
    604 S.W. 2d 560
    Supreme Court of Arkansas
    Opinion delivered September 12, 1980

      Steve Clark, Atty. Gen., by: W. Russell Meeks, III, Deputy Atty. Gen., Little Rock, for appellant.

      James F. Lane, Little Rock, for appellee.

      H. Clay Robinson, Fort Smith; Raymond R. Abramson, Clarendon; Allen Gordon, Morrilton; Robert A. Leflar, Fayetteville; Frank Huckaba, Mountain Home; Ralph Wilson, Jr., Osceola; and Georgia Elrod, Siloam Springs, amicus curiae.
   John A. Fogieman, Chief Justice.

Appellant, the Secretary of State of Arkansas, who has the duty of certifying the ballot for the General Election of 1980 to the Boards of Election Commissioners of the various counties of the state, brings this appeal questioning the decree of the Chancery Court of Pulaski County, holding that the ballot form for submission of the proposed Constitution of 1980 he was preparing to certify, was void and directing him to certify another form. We agree with the holding of the chancery court and affirm its decree.

The Arkansas Constitutional Convention of 1979 was called pursuant to the vote of the majority of the legal voters who voted on the question at the general election in 1976, which had been submitted pursuant to Act 1177 of 1976. In execution of this expression of the will of the people, the ultimate sovereign, the General Assembly called the convention and provided for the selection of delegates, the assembling of the convention, and the time for certification of its final draft of a proposed new constitution to the Secretary of State. Act 3 of the First Extraordinary Session of the General Assembly held in 1977, as amended by Act 622 of 1979. As a part of the proposal certified to the Secretary of State, the convention included a proposed ballot form for submission of its proposal for a new constitution (to the people) in the general election to be held on November 4. This ballot form was:

PROPOSED CONSTITUTION OF 1980
FOR PROPOSED CONSTITUTION OF 1980
FOR RETENTION OF THE CONSTITUTION OF 1874

Appellees, John F. Wells and Independent Voters of Arkansas, Inc., an Arkansas corporation, as citizens and taxpayers, brought this action to enjoin appellant from certifying the ballot form proposed by the convention. They alleged that the convention’s proposed ballot form was void. They asserted that they were acting to prevent an illegal exaction. No one now questions the standing of appellees to bring this action. Appellant denied that the proposed ballot form was invalid or defective. By an amendment to their complaint, appellees asked for a reformation of the ballot form.

Appellant asserts only one point for reversal, but his argument is actually three-pronged. He first asserts that a judicial determination of the ballot form is invalid and in violation of Article IV, § 2 of the Constitution of Arkansas. Next, he argues that the applicable laws dealing with the powers of the Constitutional Convention of 1979 do not limit the convention’s power to determine the ballot form to be used in submitting its proposed constitution to the people. Finally, he argues, the ballot form is not misleading. We disagree with each of these arguments. These arguments are intermingled and interrelated, so we will not treat them separately.

In asserting that this judicial determination violated the separation of powers mandated by the existing constitution, appellant first argues that the trial court impliedly found that the General Assembly should have provided a limitation on the power of the convention to prepare a ballot form, but, that as a matter of fact, there was no such limitation, even if it be conceded that a legislative limitation included in the act submitting the call to the people would have been valid. Appellant bases this argument upon the premises that there was no mention of the ballot form in Act 1177 of 1976 and that this act is the only one to be considered as the call by the people.

We have no difficulty in concluding that the chancellor was right. It is true that no legislative act pertaining to constitutional conventions' contains a specifically worded form for submission of their proposals. It has been said that it is lawful for a convention to prescribe details for submission of constitutional changes recommended by it, in the absence of popular directions. Jameson on Constitutional Conventions (4th Ed.), p. 231. We find that there were popular directions. After the vote favoring the call of a constitutional convention, the General Assembly adopted Act 3 of the First Extraordinary Session of 1977. By § 7 of that act the General Assembly addressed the question of the time and manner of submission of the convention’s proposal or proposals to the people. That section provided that the draft of the convention be submitted to the electorate for approval or rejection, either at a special election to be held in 1979 or at the 1980 general election. The act prescribed the exact form of the submission of the question to the electorate and it was submitted as prescribed, viz:

INSTRUCTIONS TO VOTERS
The proposed constitution to be drafted by the Constitutional Convention of 1979 will be submitted to the electors for approval or rejection at a Special Election to be held on the second Tuesday in November, 1979, or at the General Election to be held in November, 1980, as determined by the preference of the electors. Mark an X opposite the vote of your preference, since a vote for both preferences will nullify your vote.
FOR holding the election on the proposed Constitution at the general election to be held in November, 1980.
FOR holding the election on the proposed Constitution at a special election to be held on the second Tuesday in November, 1979.
[Emphasis ours.]

Even if the vote of the people on this proposal in 1978 was not as much a part of the call of the convention as its vote in 1976, any limitation imposed by the General Assembly was ratified by the people. At the time of the vote to call the election, Ark. Stat. Ann. § 2-112 (Repl. 1976) was in full force and effect. It had required that a convention’s proposal be submitted at a general election for adoption or rejection. Act 3 gave the voters the option of voting on the proposal or proposals at a special election. Any limitation on submission of the convention’s product was ratified, either expressly or impliedly. Any such limitation would meet the tests imposed in Pryor v. Lowe, 258 Ark. 188, 523 S.W. 2d 199.

The limitation upon the power of the convention was that its proposals be submitted for adoption or rejection, or approval or rejection. See Harvey v. Ridgeway, 248 Ark. 35, 450 S.W. 2d 281; Pryor v. Lowe, supra. See also, Jameson on Constitutional Conventions (4th Ed.), p. 490. Clearly, the people intended that a voter be given a clear cut choice of voting for adoption (approval) or for rejection. Nothing in the question submitted to the people indicated that there would be any opportunity for the statement of any other preference by a voter. The effect of a majority vote for adoption was stated in § 7 of Act 3. Likewise the effect of a vote “against the proposed constitution” was also clearly stated in that section, i.e., that the proposal “shall be deemed rejected by the electors,” and the existing constitution of the state (not the Constitution of 1874), as amended, should continue to be the constitution of this state. Nowhere is it suggested that the voters should express a preference for the existing constitution, or the Constitution of 1874.

We find another basic premise of appellant’s argument to be without merit. We find no violation of the doctrine of separation of powers in the action taken by the chancery court. That court did not impose a limitation upon the convention’s powers. The ultimate sovereign, the people, in expressing their desire that the convention’s proposals be submitted at the general election, certainly implied that the laws governing general elections be applied, insofar as possible. There has been judicial review of the method of presentation of questions on the ballot at general elections for many years. This has been done in connection with proposed constitutional amendments, initiated acts and referendums. See Westbrook v. McDonald, 184 Ark. 740, 43 S.W. 2d 356; Newton v. Hall, 196 Ark. 929, 120 S.W. 2d 364; Johnson v. Hall, 229 Ark. 404, 316 S.W. 2d 197; Moore v. Hall, 229 Ark. 411, 316 S.W. 2d 207; Sturdy v. Hall, 204 Ark. 785, 164 S.W. 2d 884. See also, Berry v. Hall, 232 Ark. 648, 339 S.W. 2d 433. The same principles which call for action by the judicial branch in those cases, in which there is no specific privision, either by statute or constitution, for judicial review of ballot titles, are applicable here. But, in any event, the courts may direct the action of officers of the executive branch, where their duty is clear and the exercise of discretion is not involved. See Hardin, Comm. v. Cassinelli, 204 Ark. 1016, 166 S.W. 2d 258, and cases therein cited. And actions of officers of the executive branch in the conduct of elections may be enjoined where they would constitute an illegal exaction by reason of expenditure of public funds in holding an unauthorized election. Townes v. McCollum, 221 Ark. 920, 256 S.W. 2d 716.

Appellant’s reliance on Wells v. Purcell, 267 Ark. 456, 592 S.W. 100 and Wells v. Riviere, 269 Ark. 156, 599 S.W. 2d 375, as barring judicial action, is misplaced. It is true that, in those cases, we recognized that the courts could not control the action of the legislative branch, but it is clear that the doctrine of separation of powers does not prevent the judicial branch from passing on the validity of legislative acts which were unauthorized. We have held that a constitutional convention is not a coordinate branch of government. Harvey v. Ridgeway, supra. Even if it were, that would not bar judicial relief from actions beyond its authority.

The courts ought not to interfere, so long as a constitutional convention is acting within the scope of its duties in framing a constitution, no matter how much the convention appears to exceed its powers, but courts should interfere in matters outside the convention’s proper functions to stop an ultra vires act as readily as they would stop such an act by any other department of government. Hoar, Constitutional Conventions, pp. 160, 229. If the convention was, indeed, completely autonomous, the courts should not have entertained the taxpayer’s action in Harvey v. Ridgeway, supra, where the contention was made that the trial court had no jurisdiction to make a determination as to the eligibility of a legislator to serve as a delegate to a constitutional convention.

Appellant argues that the exercise of powers of the constitutional convention, once convened, is not subject to any branch of the government, and that the convention is responsible. only to the electorate, which may express its disapproval, not only of the contents of the convention’s proposal, but the method of presentation thereof, when the proposed constitution is submitted at the general election. Even if we were to fully accept the basic premise of this argument, which we do not, we cannot agree with appellant that the people could disapprove the method of presentation by voting to reject the constitution proposed, but it appears to us that the form of ballot proposed would preclude a vote to reject the proposal, except by indirection. We do not agree, as we will presently point out, that the ordinary voter would consider, as appellant does, that a vote not to approve was a vote to reject. The flaw in appellant’s reasoning is that there is no space provided for an elector to vote to reject the proposed constitution, and we do not agree with appellant’s argument that, because rejection of the proposed constitution would have the effect of retaining the present constitution, that a vote “FOR RETENTION OF THE ARKANSAS CONSTITUTION OF 1874” would be translated in the minds of many voters, into a vote to reject the 1980 proposal. In this respect, we agree with the chancellor that the form of ballot proposed by the convention is misleading. Undoubtedly, many voters who expressed their dissatisfaction with the existing constitution in voting to call a constitutional convention are still dissatisfied with it, but do not favor the 1980 proposal. Marking the ballot could present a problem to these voters and others of the same mind who are for neither document. For that reason, they might not vote at all.

The convention’s statement of the alternaive to the proposed constitution is otherwise unclear. What does retention of the Arkansas Constitution of 1874 mean? In the first place what does “Constitution of 1874” mean to the average voter? It is extremely doubtful that it is clear to the average voter that the existing constitution is the Constitution of 1874 or that he is conscious of the date of its adoption. Even though the basic document was the Constitution of 1874, that constitution has been amended 58 times. These amendments have had considerable impact on the terms of that constitution ás originally adopted. Members of the legal profession would not likely be misled in this respect, but their familiarity with the history and current content of the existing constitution far exceeds that of the average voter. Is the existing constitution the constitution of any particular year in the minds of some people? It has been suggested in our conference that even the word “retention” may well be foreign to the vocabulary of the average voter.

A voter is allowed only five minutes in the voting booth. Ark. Stat. Ann. § 3-711 (Repl. 1976). Consequently, ballot titles and ballot forms should be so worded that a voter need not hesitate, before casting his vote, to ponder over its consequences so he can feel assured that he is casting it according to his actual desire. It has been said by a leading authority on constitutional conventions that, in determining the manner of submitting constitutions to the people two things should be kept in view, i.e., obtaining completely and, as far as possible, in detail, the public will and, secondarily, convenience. He adds that, if it were not nearly impracticable* the best mode would be to submit every distinct proposition in a proposed constitution separately, so that each voter could vote yea or nay upon it. Jameson on Constitutional Conventions (4th Ed.). See pp. 530-532

Although we find the ballot form submitted by the convention is misleading, we hasten to add that no member of this court would even suggest that any of the 52 members of the convention favoring it had any intention whatever to deceive a single voter. We believe that the proposal is the result of nothing more than understandable zeal on the part of a group of delegates who had worked long and hard to produce a document that would not only be acceptable to the majority of the people of the state but would best serve the state for many years. Unfortunately, that zeal was translated into a partisan ballot form.

We cannot accept the argument underlying most of appellant’s contentions, i.e., the virtually unlimited power of the convention, as the sole determiner of the propriety, fairness and construction of the ballot form for presentation of its document to the people. This argument is not stated as extremely by appellant as by some amici curiae, i.e., once called and convened the convention is vested with virtually total autonomy and can act as it wills, because complete trust and confidence have been reposed in it by the people.

We have accepted this premise, so long as the convention is acting within the scope of its delegated powers to propose, as a committee of the people, a scheme of government, or revisions or alterations of the existing system to be submitted to the people for adoption or rejection. Harvey v. Ridgeway, supra. See also, Pryor v. Lowe, 258 Ark. 188, 523 S.W. 2d 199; Jameson on Constitutional Conventions (4th Ed.), p. 490. The idea of total autonomy might even permit the proponents of a proposed constitution to submit it for a positive vote only, as we have been led to believe has been done in other parts of the world. Not the most ardent advocate of the convention’s ballot form would entertain that thought for a moment. The idea of total autonomy has been discarded long ago. This court has said that a constitutional convention is not omnipotent. Berry v. Bellows, 30 Ark. 198. We are told by one of the most widely recognized authorities on constitutional conventions that the “doctrine of convention sovereignty” represents mere oratorical flights of fancy and goes no further in actual practice than to assert the possession by the convention of incidental and emergency powers and its independence from legislative control. Hoar, Constitutional Conventions, p. 227. See also, Jameson on Constitutional Conventions (4th Ed.), p. 314.

We conclude that the convention was not the sole judge of the sufficiency of its ballot form and that the form submitted by it is misleading.

The decree is affirmed.

Mays, J., dissents.

Stroud, J., dissents in part.

Richard L. Mays, Justice,

dissenting. Although Act 3 of 1977 contains no specific expression regulating ballot title forms and does not even purport to address the issue, this Court holds that the act controls the ballot title form of the proposed constitution of 1980. The Court seizes upon language of the act directing the constitutional convention to submit its final draft of the proposed constitution to the electors “for approval or rejection” to circumscribe judicial limits on the convention’s ballot form. Since the ballot form adopted by the convention submits the issue to the electorate in the form of “for proposed constitution of 1980” or “for retention of the constitution of 1874,” the Court concludes that the ballot form is void because no space is provided for an elector to vote against the proposed constitution. The Court reasons that many voters may not appreciate that a vote for the constitution of 1874 is a rejection of the proposed constitution of 1980. I must respectfully dissent.

No specific provision can be found in our statutes or present state constitution which even purports to regulate the ballot title of a proposed constitution of a constitutional convention. Although Act 195 of 1943 regulates the ballot titles of constitutional amendments submitted to the voters by the General Assembly or initiated petitions, it has no application to the ballot title of a constitutional convention. Therefore, the only apparent limitation on the ballot title submitted by our constitutional convention is that found in our Federal Constitution.

Since the ballot title apprizes the voter of the question or issue to be voted on, the fundamental question should be whether the issue, as presented by the ballot, fairly and accurately informs the voter of the choices available. No one disputes that a vote against the proposed constitution of 1980 is in effect a vote for the constitution of 1874. It is simply contended that the ballot form is misleading because the voter who wants to vote against the 1980 constitution may not understand that he therefore must vote for the constitution of 1874. Although a voter so uninformed has my sympathy, the Federal Constitution does not assure a literal right to simply vote against but only a right to vote on the real question fairly and accurately presented. The real question to be submitted to the people of Arkansas in November, 1980 is not a choice between the constitution of 1980 or no constitution; it is a choice between the constitution of 1980 or the constitution of 1874. I, for one, am not prepared to say that the constitutional convention violates fundamental principles of due process by presenting the question to the voters in terms of the existing practical alternatives.

One other point should be made. The right of the people to change its constitutional government is one of the most important principles of a democracy. If that right can be frustrated by the existing government’s machinery without a clear mandate in the law, the right may lose its meaning.

I would reverse the judgment below.

John F. Stroud, Justice,

dissenting. I cannot say that the chancellor and the majority of my brethren are wrong in their finding that the ballot title proposed by the constitutional convention is misleading. However, I will not lightly overrule the proposal of the majority of the convention delegates if it is reasonably possible to preserve all or part of their will. An alternate ballot title suggested in the amicus curiae brief of Dr. Robert A. Leflar, President of the 1979-80 Arkansas Constitutional Convention, meets most of the objections of the majority opinion while preserving the language of the originally proposed ballot title. I would modify the decision of the chancellor to permit that suggested ballot title:

PROPOSED CONSTITUTION of 1980
FOR PROPOSED CONSTITUTION OF 1980
AGAINST PROPOSED CONSTITUTION OF 1980 (FOR RETENTION OF CONSTITUTION OF 1874 AS AMENDED)

      It was stipulated that the chancery court had jurisdiction of the parties and the subject matter. Harvey v. Ridgeway, 248 Ark. 35, 450 S.W. 2d 281 and Pryor v. Lowe, 258 Ark. 188, 523 S.W. 2d 199 were actions by citizens and taxpayers.

      It has been suggested in the briefs that the people have the same remedy with reference to unauthorized acts by the convention as they would for such acts by the legislature as set out in Wells v. Purcell, supra. Of course, the people cannot replace a delegate to the constitutional convention, because of the absence of any statutory authority or machinery.

      The fact that 44 delegates opposed this ballot form is some indication that many of them shared the chancellor’s views.


author: John F., Stroud, Justice. John I. Purtle, Justice,

text:
    J. Bill BECKER and E. J. JACOBS v. Paul RIVIERE, Secretary of State of the State of Arkansas v. THE FAIR ARKANSAS INTEREST RATE COMMITTEE, Charles RAY, Chairman Charles RAY, Individually, Charles RAY as Representative of a Class
    80-170
    604 S.W. 2d 555
    Supreme Court of Arkansas
    Opinion delivered September 15, 1980

      Youngdahl & Larrison, by: James E. Youngdahl, Little Rock, for petitioners.

      Steve Clark, Atty. Gen., by: Russell Meeks, 111, Deputy Atty. Gen., and Rodney E. Slater, Asst. Atty. Gen., Little Rock, for respondent.

      Jim Guy Tucker, of Tucker & Stafford, Little Rock, for intervenors.
   John F., Stroud, Justice.

This is an original action filed by Petitioners on August 18, 1980, pursuant to Amendment No. 7 to the Arkansas Constitution, Ark. Stat. Ann. § 2-211 (Repl. 1976), and Rule 17 of this court, seeking to enjoin the Secretary of State from certifying proposed Constitutional Amendment No. 60. Petitioners contend that both the proposed popular name and the proposed ballot title are misleading and deceptive. They also allege that the proposed popular name obscures the true nature and effect of the proposed amendment, and that the proposed ballot title is tinged with partisan coloring and does not reflect the primary effect of the proposal. These allegations are controverted by respondent and the intervenor The Fair Arkansas Interest Rate Committee that sponsored the initiated petition. On March 31, 1980, which was prior to circulation of the initiative petition, the original draft was submitted to the Attorney General as required by Ark. Stat. Ann. § 2-208 (Repl. 1976). Although the statute authorizes him to “substitute and certify a more suitable and correct ballot title and popular name,” on April 18, 1980, he approved and certified the ballot title and popular name in the same form as submitted by intervenors. Due to the immediacy of the deadline for publications required to include the proposed constitutional amendment on the ballot of the general election to be held on November 4, 1980, the case has been advanced by this court; the parties agreed to an accelerated submission schedule; the matter was submitted on the pleadings and the thorough briefs of petitioner, respondent and intervenors; and we issue this expedited opinion.

The proposed popular name, ballot title, and amendment are as follows:

[POPULAR NAME]
MAXIMUM RATE OF INTEREST CONTROLLED BY TWO-THIRDS VOTE OF GENERAL ASSEMBLY.
[BALLOT TITLE]
AN AMENDMENT TO ARTICLE XIX, SECTION 13 OF THE 1874 CONSTITUTION TO PROVIDE THAT THE MAXIMUM RATE OF INTEREST SHALL NOT EXCEED 10 PERCENT EXCEPT BY LAW ENACTED BY TWO-THIRDS VOTE OF THE GENERAL ASSEMBLY; TO MAKE IT A CRIME KNOWINGLY TO CHARGE MORE THAN THE MAXIMUM RATE OF INTEREST AND TO ALLOW PERSONS PAYING MORE THAN THE MAXIMUM TO RECOVER TWICE THE AMOUNT OF INTEREST PAID.

[PROPOSED AMENDMENT]

BE IT ORDAINED BY THE PEOPLE OF THE STATE OF ARKANSAS THAT THE FOLLOWING SHALL BE AN AMENDMENT TO THE CONSTITUTION:

‘Section 1. Section 13 of Article XIX of the Arkansas Constitution of 1874 be and the same is hereby amended to read as follows:

‘Section 13. Interest. The General Assembly shall control, regulate and classify interest and set maximum effective rates thereof.

The maximum rate of interest collected shall not exceed ten (10) percent per annum unless otherwise provided by law enacted by affirmative vote of two-thirds (2/3) of the membership of each house of the General Assembly.

Contracts in excess of the maximum rate shall be void as to principal and interest unless otherwise provided by law.

Provided, in any event: (1) a person who knowingly charges interest in excess of the maximum rate shall be guilty of a crime; and (2) a person who has paid interest in excess of the maximum rate may recover not less than twice the amount of interest paid, within the time provided by law.’

The standards we use to determine the sufficiency or shortcomings of popular names and ballot titles have been expressed by this court on many occasions. In Bradley v. Hall, Sec'y of State, 220 Ark. 925, 251 S.W. 2d 470 (1952), several were mentioned:

. . . On the one hand, it is not required that the ballot title contain a synopsis of the amendment or statute. Sturdy v. Hall, 204 Ark. 785, 164 S.W. 2d 884. It is sufficient for the title to be complete enough to convey an intelligible idea of the scope and import of the proposed law. Westbrook v. McDonald, 184 Ark. 740, 43 S.W. 2d 356, 44 S.W. 2d 331. We have recognized the impossibility of preparing a ballot title that would suit every one. Hogan v. Hall, 198 Ark. 681, 130 S.W. 2d 716. Yet, on the other hand, the ballot title must be free from ‘any misleading tendency, whether of amplification, of omission, or of fallacy,’ and it must not be tinged with partisan coloring. Walton v. McDonald, 192 Ark. 1155, 97 S.W. 2d 81.

A ballot title is sufficient if it identifies the proposed act and fairly recites the general purpose, and it need not be so elaborate as to set forth the details of the act. Coleman v. Sherrill, 189 Ark. 843, 75 S.W. 2d 248 (1934). However, a popular name and a ballot title must be free from “catch phrases and slogans which tend to mislead and to color the merit of a proposal on one side or the other . . .” Moore v. Hall, Sec'y of State, 229 Ark. 411, 316 S.W. 2d 207 (1958). The popular name and ballot title need only identify the proposal to the informed voter, but in the leading case of Westbrook v. McDonald, 184 Ark. 740, 43 S.W. 2d 356, 44 S.W. 2d 331 (1931), this court acknowledged the importance of informing the many electors who will derive their information from the ballot title:

. . . We think the assertion may safely be ventured that it is only the few persons who earnestly favor or zealously oppose the passage of a proposed law, initiated by petition, who have attentively studied its contents and know how it will probably affect their private interests. The greater number of voters do not possess this information and usually derive their knowledge of the contents of a proposed law from an inspection of the title thereof, which is sometimes secured only from the very meager details afforded by a ballot which is examined in an election booth preparatory to exercising the right of suffrage.

It is appropriate to determine what changes would occur from adoption of the proposed amendment inasmuch as the voter is really choosing between retention of the present law and substitution of something new. Article XIX, Section 13 of the Arkansas Constitution, which would be superseded by adoption of the proposed amendment, presently provides:

All contracts for a greater rate of interest than ten percent per annum shall be void, as to principal and interest, and the General Assembly shall prohibit the same by law; but when no rate of interest is agreed upon, the rate shall be six per centum per annum.

By far the most significant change that the proposed amendment would allow is the abrogation of the present 10 per cent limit on interest rates. We think the proposed ballot title sufficiently puts a voter on notice of this change by stating “the maximum rate of interest shall not exceed 10 percent except by law enacted by two-thirds vote of the general assembly” and that it and the proposed popular name both fairly identify the true purpose of the amendment. We reject petitioners’ contention that the ballot title is defective because it does not indicate that the present constitutional limit on interest rates is 10 per cent per annum. The ballot title is not required to state the present interest limitation, nor to summarize the Arkansas law on usury. Similarly, although the ballot title properly discloses that the proposed amendment makes it a crime to knowingly charge excess interest and discloses that a person charged excess interest may recover twice the interest paid, we do not think the ballot title is defective for failure to point out that this is a new sanction and a new form or relief. The fact that it is an amendment is sufficient to inform that change will result. Petitioners argue that language contained in the body of the proposed amendment authorizing the General Assembly to “control, regulate and classify interest” could allow that body to arbitrarily exclude certain charges as interest by legislative definition. They also argue that the General Assembly could provide any interest ceiling or no interest ceiling, and that they could provide that contracts could remain enforceable even though usurious. We will not speculate as to the adoption of future legislation, nor require that warnings of possible or potential enactments be included in a constitutional amendment ballot title.

It is significant that the proposed popular name and ballot title have previously been submitted to and approved by the Attorney General pursuant to Ark. Stat. Ann. § 2-208 (Repl. 1976). A 1977 amendment to that statute directs the Attorney General to reject the entire ballot title, popular name and petition if he finds the ballot title or popular name to be “misleading.” However, even prior to the adoption of this amendment (when the authority of the Attorney General was limited to certification of the ballot title and popular name submitted or preparation by him of substitutes), this court expressed the significance of that certification, and indicated a liberal construction should be given to the interpretation of the requirements of Amendment No. 7 and in determining the sufficiency of the ballot title. Fletcher v. Bryant, 243 Ark. 864, 422 S.W. 2d 698 (1968); Mason & Lamb v. Jernigan, Sec’y of State, 260 Ark. 385, 540 S.W. 2d 851 (1976).

Also of significance is the burden of proof in this matter. Once the intervenors had complied with Ark. Stat. Ann. § 2-201, et seq., and with the provisions of Amendment No. 7, the burden of proof clearly rested with petitioners. Amendment No. 7 provides, “In the event of legal proceedings to prevent giving legal effect to any petition upon any grounds, the burden of proof shall be upon the person or persons attacking the validity of the petition.”

A careful comparison of the proposed ballot title to the text of the proposed constitutional amendment reveals that the title clearly tracks the language of the proposed amendment. We must also bear in mind that strict technical construction is not required, but that substantial compliance with Amendment No. 7 is all that is required. Fletcher v. Bryant, supra. As was pointed out in Hoban v. Hall, Sec’y of State, 229 Ark. 416, 316 S.W. 2d 185 (1958), it is our duty to approve a ballot title “if it represents an impartial summary of the measure and contains enough information to enable the voters to mark their ballots with a fair understanding of the issues presented.” Our task is not to require nor draft the perfect proposed popular name and ballot title, but merely to determine if those presented are legally sufficient. We find that the proposed popular name and the proposed ballot title to proposed Amendment No. 60 do conform to the standards established by the Arkansas Constitution, by the General Assembly and by this court.

The petition for an injunction is denied.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. In my opinion neither the popular name nor the ballot title is proper. The whole purpose of this proposed amendment is to increase the legal rate of interest in Arkansas and to eliminate the penalties now applied for usurious contracts. The heart of the proposed amendment is to remove the 10% per annum limit on interest rates from the present constitution.

I do not consider whether the proposed amendment is a good one or a bad one. I make no attempt to decide whether the people would be better off with its adoption or rejection. These issues are not for us to consider in this case nor would this Court ever be in a position to consider whether an amendment is a good one or bad one. We are considering only its legality.

In considering the legality, we must decide whether the popular name and ballot title are proper. All parties to this proceeding seem to agree that neither the popular name or ballot title should be unfair or misleading. We have ruled that the popular name and ballot title must not be misleading or color the merits of the proposal. Hope v. Hall, Secy. of State, 229 Ark. 407, 316 S.W. 2d 199 (1958); Moore v. Hall, Secy. of State, 229 Ark. 411, 316 S.W. 2d 207 (1958); Hoban v. Hall, Secy. of State, 229 Ark. 416, 316 S.W. 2d 185 (1958); Mason & Lamb v. Jernigan, Sec'y. of State, 260 Ark. 385, 540 S.W. 2d 851 (1976). We have made substantially the same ruling when we considered the ballot title only in the case of Fletcher v. Bryant, 243 Ark. 864, 422 S.W. 2d 698 (1968). In Fletcher we stated the title was sufficient if it identifies the proposed act and fairly alleges the general purpose.

There is no disagreement that the burden of proof is upon those attacking the validity of the popular name and ballot title of a proposal. Neither is there any disagreement that we give a liberal construction to the proposals in such cases.

I have previously stated the purpose of this proposal is to eliminate the present 10% limit on interest rates in the present constitution and to eliminate the penalties now provided in usury cases. The proposed ballot title does not indicate there is to be a change in the constitution, nor does it refer to the present 10% limit on interest charges. I simply cannot link the popular name to the purpose of the act.

The ballot title is equally defective. There is no reference to a change in the present constitutional limit and penalties as they relate to usury. The main thrust of the proposal is to allow the General Assembly to increase the interest rate to any amount they desire by a two-thirds vote. There is nothing in the ballot title stating the purpose is to allow an increase in the present 10% limit except by innuendo. There is nothing in either the title or the name to inform the people that there will be no limit on the interest rate as long as the legislature so provides. There are no guidelines or limitations, indeed nothing, in the popular name or title which would enable a person to understand the proposition on which he is voting.

Either the name or the title should inform the people that the General Assembly, by a two-thirds vote, may establish the interest rate at any figure if the proposal is adopted. In other words, the interest rate will be determined by two thirds of the membership of the General Assembly. There is no other limiting power.

The ballot title does not even hint that the approval of the act would have the effect of validating contracts which at the present time are invalid. Neither is there a hint that the legislature would be able to determine which charges constituted interest and which charges were non-interest.

I am not saying the name and title are fraudulent or deliberate misrepresentations. It is only natural that the proponent of any proposition to be voted upon by the people would obtain the most favorable name and title possible in order to enhance the chances of approval by the voters. I feel that in the present case the omissions cause the proposal to be defective. None of the statements used in the name or title are false; however, they simply do not measure up to what I consider to be the standards required to notify the voters of the full nature of the amendment.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    Willie Clarence INGRAM v. STATE of Arkansas
    CR 80-59
    603 S.W. 2d 887
    Supreme Court of Arkansas
    Opinion delivered September 15, 1980
    Rehearing denied October 6, 1980

      E. Alvin Schay, State Appellate Defender, by: Ray Hartenstein, Chief Deputy Defender, Little Rock, for appellant.

      Steve Clark, Atty. Gen., by:Joseph H. Purvis, Deputy Atty. Gen., Little Rock, for appellee.
   George Rose Smith, Justice.

The appellant and Laverto Tony Holmes were jointly charged with having committed' rape at the home of the prosecutrix in Little Rock. The jury returned a verdict of guilty and imposed a 15-year sentence. For reversal Ingram argues that the trial court erred in ruling that an alleged oral confession by Ingram could be used by the prosecution for impeachment if Ingram elected to testify, without the court’s having first made a finding of fact that the oral confession was actually made and was voluntary.

After the conclusion of a Denno hearing the prosecutrix testified on the merits that the defendants forcibly entered her house and raped her, Ingram first and then Holmes. Ingram elected not to testify on the merits.

The Denno hearing was requested with respect to a written statement signed by Ingram. That statement was comparatively innocuous, Ingram merely stating that the prosecutrix agreed to do what Holmes said and that Ingram stayed in the front of the house when the other two went in the bedroom. The court found the written confession to have been voluntary; it was introduced by the State in its case in chief.

The point now in issue arose during the Denno hearing. Two police officers testified that during the investigation they went to the home of Ingram’s father and arrested Ingram. As they were driving to the jail they orally advised Ingram of his rights. They said Ingram then told them that after Holmes got through with the prosecutrix he went in and had intercourse with her also. The written statement was made after they reached the police station.

Defense counsel objected to the oral confession primarily on the ground of surprise, in that there had been no mention of it in the prosecutor’s file. Counsel also asserted that the officers’ testimony was inherently incredible and that the oral statement would not be voluntary, no rights form having been signed. Both defendants asked that the oral confession be suppressed. The judge at that point made no ruling, pointing out that there was nothing before him except uncontroverted testimony that Ingram had been advised of his rights and had made his statements voluntarily.

Next, Ingram took the stand and testified that the officers did not advise him of his rights, that he made no statement at all, and that they all rode silently to the station. After some additional testimony, not now pertinent, the court ruled that the statement would be suppressed on the ground of surprise, but it could be used by the State if Ingram testified and denied having made it. We quote all the material part of the court’s ruling and of the ensuing colloquy to show that defense counsel did not object to the ruling and did not request a finding that the oral statement had or had not been voluntary.

The Court: The Court will hold that the State will not be permitted to introduce into evidence the alleged oral statement, not that the Court is convinced that it may or may not have occurred but because of the possible prejudice to the Defendants and there being no evidence of that statement in the file to alert the Defendants. And I just think it would be better procedure if an oral statement is made that there be some note in the file, and I think it generally is in the file. . . . But in this case there is no evidence of it to put the Defense on notice and, without ruling where it is made or is not made, I will just hold that the procedure for noting that in the file, which would be a good procedure, was not done in this case. And, therefore, the statement will be suppressed.
Defense Counsel: Your Honor, that goes even for the State’s rebuttal.
The Court: Now, if Mr. Ingram takes the stand, then the State will be permitted to inquire if he made a statement to Dunnington or . . . Keel. Will be able to ask him if he made a statement, setting forth what it is. But I will read at that time an instruction to the jury if you request it that the statement can be made [considered] only for an inconsistent statement to attack his credibility and cannot be admitted or considered by the jury for the truth or veracity of the statement.
Defense Counsel: Your Honor, what I was getting at is if Mr. Ingram were to take the stand [and] the Prosecutor were to ask him that on cross-examination is the Prosecutor permitted to put Mr. Dunnington upon rebuttal?
The Court: Yes. That’s what I just said. If Mr. Ingram takes the stand — I’m going to exclude the testimony of the alleged statement in the car, but if he takes the stand, the Prosecutor can ask him if he made a statement different. Also, his statement on the witness stand must be different from the written statement that I’ve admitted in. If he reads that and that’s his story, fine. But then the Prosecutor can question him about a prior inconsistent statement which is the oral statement.
Defense Counsel: His oral statement is inconsistent with his written statement.
The Court: So when he makes his —
Defense Counsel: If he sticks to his written statement, then the oral statement can’t come in under any circumstances.
The Court: No. He has made a prior inconsistent statement. So, if he stays with the written statement in court, then the Prosecutor can ask him if he’s made a prior inconsistent statement. Now, if he turns around on the witness stand and says what he said in the car, there is no prior inconsistent statement and he couldn’t inquire of him.
Prosecutor: And I couldn’t put on extrinsic proof to show that?
The Court: No.

It will be seen that after the court had announced its ruling, sustaining the objection on the ground of surprise, counsel on both sides asked questions to determine the exact effect of the ruling with respect to the possible use of the oral statement for impeachment only. But defense counsel made no objection whatever to the court’s ruling and no request whatever for a finding on the question of voluntariness.

The defense must ordinarily raise the issue of voluntariness when the State introduces proof of a confession. In Wainwright v. Sykes, 528 F. 2d 522 (5th Cir., 1976), Sykes made no objection when his in-custody statements were introduced at his trial in the state court. After his conviction he applied for habeas corpus relief in the federal court, arguing that it was incumbent on the prosecution to establish the voluntariness of the statements before they could be introduced in evidence. The Court of Appeals for the Fifth Circuit upheld that argument and ordered the state court to hold a hearing on the question of voluntariness. The Supreme Court reversed, saying broadly that “the Constitution does not require a voluntariness hearing absent some contemporaneous challenge to the use of the confession.” Wainwright v. Sykes, 433 U.S. 72, 86 (1977). Inasmuch as an in-custody confession was before the court in that case, it appears that the- mere presumption that such a confession is involuntary does not dispense with the need for an objection.

Despite the ruling in Wainwright, it has been held that certain “alerting circumstances” may require the trial court to raise the question of voluntariness itself, without an objection, when a confession is introduced. The cases were reviewed at length in United States v. Powe, 591 F. 2d 833 (D.C. Cir., 1978). The court held that the trial judge should have interposed the issue of voluntariness when the testimony indicated that the confession was obtained by a promise of leniency. No doubt other alerting circumstances might include the use of force by the interrogating officers or the existence of serious physical or mental infirmity in the defendant.

Assuming the Powe decision to be correct, in the case at bar we find no alerting circumstances that might dispense with the necessity for an objection to the use of the confession for impeachment. Both officers testified that the Miranda warnings were given. There is no suggestion that force or a promise of leniency was used. Ingram himself simply denied that he had made the statement.

It seems evident that trial counsel, who were different from appellate counsel, were confronted without warning with a choice of trial tactics. Their main objective was to exclude the oral confession, which was far more damaging than the written statement and perhaps fatal to a successful defense. Counsel had succeeded in having the oral confession excluded from the State’s case in chief, on the narrow ground of surprise. That victory, in view of the court’s adverse but correct ruling on the issue of impeachment, was won at the cost of keeping Ingram off the witness stand. Counsel might understandably have been hesitant to abandon the issue of surprise and press for a ruling either that the confession had not been made or that it was not voluntary. Counsel decided, we cannot even say unwisely, to be content with their success on the issue of surprise. On the record as it was made, no reversible error is shown.

The appellant’s position is not strengthened by counsel’s having made a formal record of objections after both sides had rested and after the instructions had been agreed upon. At that point defense counsel made a motion for a directed verdict (which had already been tacitly overruled) and renewed his objection on the ground of surprise: “I would like to reiterate my objections to permitting [the oral confesson] to be used in any form whatsoever, even on rebuttal. The reason for this is surprise. . . . Because of this element of surprise, the Defendant Ingram was effectively prevented from a strategic point of view from taking the stand which he might well have done otherwise and was, in fact, planning to do, which he did not do because the Court was to permit this alleged oral confession to be used against him for purposes of State’s rebuttal. ... In addition, I would make this motion [no motion was actually being made] also on the grounds of inherent incredibility of such a statement and certainly no proof of the stature required by law that such a statement, if a statement was made, was made voluntarily and knowingly.”

The oral confession not having been introduced in evidence, the appellant’s only assertion of prejudice is that he was kept from taking the witness stand. But in the objection just quoted, counsel attributed Ingram’s failure to take the stand to the court’s assertedly erroneous ruling that a confession excluded on the ground of surprise is nevertheless admissible for impeachment. That ruling, however, was correct, as we have already seen. In counsel’s closing reference to voluntariness he merely questioned the sufficiency of the evidence and did not ask for a ruling on the point, doubtless becuase at that stage of the trial such a ruling could not have been of any practical effect, the confession not having been heard by the jury.

Affirmed.

Purtue, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree with the majority opinion in this case because, in my opinion, the appellant clearly objected to the admission of the alleged in-custody oral confession. Further, the trial court failed to make a finding of voluntariness as required by law and precedent.

Ark. Stat. Ann. § 43-2105 (Repl. 1977) states as follows:

Issues of fact shall be tried by a jury, provided that the determination of fact concerning the admissibility of a confession shall be made by the court when the issue is raised by the defendant; that the trial court shall hear the evidence concerning the admissibility and the voluntariness of the confession out of the presence of the jury and it shall be the court’s duty before admitting said confession into evidence to determine by a preponderance of the evidence that the same has been made voluntarily.

From this statute we can clearly see that if the admissibility of the confession was raised by the defendant, it was the court’s duty to determine by a preponderance of the evidence that the confession was made voluntarily. There was no such finding in this case as evidenced by the statement of the court:

The Court will hold that the State will not be permitted to introduce into evidence the alleged oral confession, not that the court is convinced that it may or may not have occurred, but because of the possible prejudice to the Defendants and there being no evidence of that statement in the file to alert the Defendants. ***

Any custodial statement made by an accused is presumed to be involuntary, and it is the duty of the state to prove otherwise. Hileman v. State, 259 Ark. 567, 535 S.W. 2d 56 (1976). An involuntary confession cannot be used even for impeachment purposes in a criminal proceeding against an accused. Mincey v. Arizona, 437 U.S. 385 (1978).

Even if it were conceded that the appellant did not use specific words in the initial objection at the Denno hearing, any doubt should be removed by the statement made at the close of the state’s evidence in chief. At that time appellant’s attorney stated:

***l would like to reiterate my objections to permitting it to be used in any form whatsoever, even on rebuttal. ***In addition, I would make this motion also on the grounds of the inherent credibility of such a statement and certainly no proof of the stature required by law that such statement, if a statement was made, was made voluntarily and knowingly.

Since the court failed to follow the requirements of Ark. Stat. Ann. § 43-2105, I think the alleged confession should have been excluded for all purposes. Clearly, our cases have held that the state has the burden of proving the voluntariness of an in-custody statement. The effect of the court’s ruling in practical application denied the appellant the right to take the stand in his own defense. Therefore, I would reverse and remand.

I am authorized to state that Mays, J., joins me in this dissent.


author: George Rose Smith, Justice.

text:
    Richard POWELL, also known as Richard MATHEWS v. STATE of Arkansas
    CR 80-122
    605 S.W. 2d 2
    Supreme Court of Arkansas
    Opinion delivered September 15, 1980
    Rehearing denied October 20, 1980

      E. Alvin Schay, State Appellate Defender, by: Jackson Jones, Deputy Defender, Little Rock, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., Little Rock, for appellee.
   George Rose Smith, Justice.

This is an appeal from a verdict and judgment imposing an 8-year sentence for the sale of a controlled substance, Valium. For reversal the appellant argues that the trial court erred in (1) permitting the State to use his oral statement for impeachment, (2) ruling upon objections to the prosecutor’s closing arguments, and (3) failing to reopen the case for further testimony after the jury had retired. No reversible error is shown.

Officer Turner, a state police undercover narcotics investigator, testified that after having bought 50 Valium tablets from Powell on February 4, 1979, he continued to act undercover until shortly before the information was filed in September. Turner testified on redirect examination that in October he and a deputy sheriff and a city policeman interviewed Powell at the jail in Jonesboro. He said he warned Powell of his rights. A rights form, signed by Powell and witnessed by all three officers, was introduced without objection.

At that point defense counsel asked, and was given, permission to approach the bench. After the ensuing barside conference, which was out of the jury’s hearing and unintelligible to the court reporter, the court ruled: “I am going to sustain the objection.” During a recess that followed immediately the prosecutor stated that on that morning he had learned that Powell had said to the officers that he had a prescription for 100 Valiums, but “I don’t usually sell them, because I need them myself.” The prosecutor said he had informed defense counsel of the statement, which he intended to use only for impeachment. He argued, however, that defense counsel had opened up the subject on cross-examination. The trial judge said he would let his ruling stand.

After the State rested, Powell took the witness stand and denied having sold anything to Officer Turner. His defense was that his brother Larry might have made the sale. On cross-examination Powell admitted that he had a prescription for 100 Valiums a month. When he was asked if he had made the statement to the officers at the jail, defense counsel again approached the bench for a conference that the court reporter noted as “unintelligible.” The court overruled the objection. Powell denied having made the statement. Later on, Officer Turner was called by the State in rebuttal and testified that Powell made the statement.

The record is completely silent as to the nature of defense counsel’s objections. Apparently two different objections were made, because the court sustained the first and overruled the second. In fact, appellate counsel now argue that the statement was inadmissible on two separate grounds, that it tended to prove other offenses and that the court did not hold a Denno hearing to determine its voluntariness. The testimony itself did not require the court to intervene, absent an objection. See Ingram v. State, also decided today. Uniform Evidence Rule 103 requires that a timely objection appear of record, stating the specific ground of objection if the specific ground is not apparent from the context. Ark. Stat. Ann. § 28-1001, Rule 103 (a) (1) (Repl. 1979). Here the specific ground is not apparent. Not only do appellate counsel argue two separate grounds, but trial counsel may have objected on other grounds, such as surprise, hearsay, or irrelevance. The Uniform Rule requires that the specific objection appear of record. It is the appellant’s responsibility to demonstrate error. Butler v. State, 264 Ark. 243, 570 S.W. 2d 272 (1978). It is impossible for us, without knowing what defense counsel’s second objection was, to say that the trial court was wrong in overruling that objection.

Second, defense counsel argued to the jury that the State had not called certain officers to rebut Powell’s testimony that they had made threats against him if he did not turn State’s evidence in another case. The prosecutor certainly had the right to argue, in reply, that the defense had an equal right with the State to call the officers.

The prosecutor also argued to the jury that to say Powell was not guilty they would have to find that the officers lied and that not one officer but three had contrived to falsely accuse the defendant. Defense counsel interposed that “there is nothing in the testimony here about a conspiracy.” The prosecutor said he was making a logical conclusion and argument from the evidence. The court overruled the objection. Powell’s testimony had been to the effect that the officers had threatened him and tried to bribe him to turn State’s evidence and that Officer Turner’s testimony about the sale and the jail statement was false. Thus if Powell’s testimony was true, it was certainly arguable that the officers had falsely accused him. The trial court had the advantage of hearing all the testimony and the arguments of counsel. It had a wide discretion in controlling the argument of counsel. Martin v. Langley, 252 Ark. 121, 477 S.W. 2d 473 (1972). Here we find no abuse of the court’s discretion, especially as the prosecutor’s argument was not such as to call for a mistrial.

Third, after the jury had retired to consider its verdict, the court asked Powell if he approved of the way. his attorney had handled his case. Powell answered: “He might have called a couple of more witnesses.” The judge replied that counsel had talked to him about those witnesses, that it had been his judgment that the testimony was not relevant, but that he would give counsel an opportunity to make a record for review. Counsel then stated that James Veteto (not shown to be immediately available) would have testified that on earlier occasions the Jonesboro police had mistaken the defendant’s brother Larry for the defendant, and that the defendant himself would have given similar testimony.

Defense counsel had evidently acquiesced in the court’s earlier ruling. Even when the defendant himself raised the issue, counsel merely stated what the proof would have been, without expressing any disagreement with the court’s ruling and without asking that the jurors be recalled from their deliberations to hear additional testimony, a matter within the court’s discretion. See Troxler v. Spencer, 223 Ark. 919, 270 S.W. 2d 936 (1954). No reversible error occurred.

Affirmed.


author: Frank Holt, Justice.

text:
    Felix Allen CLARK v. Bill FITZGERALD
    80-43
    605 S.W. 2d 1
    Supreme Court of Arkansas
    Opinion delivered September 15, 1980

      Griffin, Rainwater & Draper, Crossett, for appellant.

      Shackleford, Shackleford & Phillips, P.A., El Dorado, for appellee.
   Frank Holt, Justice.

Following our reversal and remand in Newton & Fitzgerald v. Clark, 266 Ark. 237, 582 S.W. 2d 955 (1979), the trial court held a “hearing on mandate.” Afterwards, the court issued an “order on mandate” dismissing appellant’s cause of action as to Fitzgerald. Clark appeals contending that since we “reversed and 'remanded” without further directions, he is entitled to a new trial as to Fitzgerald.

In the original action, Clark brought suit against Newton and Fitzgerald for injuries sustained when Clark drove into the rear of Newton’s loaded log truck which had stalled on a bridge. Fitzgerald, a contractor or timber dealer for Georgia Pacific Corporation, was found liable by the jury on the theory appellant was an independent contractor working for him. On appeal, after reviewing the evidence, we said that the trial court should have directed a verdict for Fitzgerald, because the evidence did not establish that Newton was an independent contractor; i.e., Newton was a log supplier as far as Fitzgerald was concerned and, even if he were an independent contractor, there was no evidence he was an incompetent contractor.

Upon our reversal, it appears that the trial court interpreted our opinion to require a dismissal as to Fitzgerald. Appellant argues this was error citing cases that upon a reversal and remand, as here, the entire matter goes back for a new trial on all issues. The appellee responds correctly that the trial court’s order is no longer an appealable order citing A. R. Civ. P. 54(b), effective July 1, 1979, or before this proceeding. The Rule in pertinent part provides:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, crossclaim or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Here the trial court, as indicated, in its “order on mandate,” found the case against Fitzgerald had been fully developed and dismissed it as to him and, by a supplemental order, awarded a judgment for the costs against the appellant. The court did not expressly direct an entry of a final judgment nor make an express determination there was no just reason for delay.

Our Rule 54 (b) is identical to F. R. Civ. P. 54 (b). The purpose of the Rule is “to strike a balance between the undesirability of piecemeal appeals and the problems of timing of review, which have been accentuated by the Rules’ liberalized procedure for joinder, crossclaims and counterclaims.” RePass v. Vreeland, 357 F. 2d 801 (3rd Cir. 1966). In observing the salutary purpose of Rule 54 (b), the court said in Sargent v.Johnson, 521 F. 2d 1260 (8th Cir. 1975): “The efficient administration of justice requires avoidance of piecemeal appeal and interlocutory adjudication.” See also Reporter’s Note to A. R. Civ P. 54 (b). The trial court’s express determination that there is no just reason for delay and its express direction to enter judgment, are essential prerequisites to finality, and without them, the appellate court has no jurisdiction to consider the appeal. Sargent v. Johnson, supra; RePass v. Vreeland, supra; Oak Construction Company v. Huron Cement Company, 475 F. 2d 1220 (6th Cir. 1973); and Wright & Miller, Federal Practice and Procedure: Civil § 2660. Thus, regardless of the state of the law prior to the adoption of Rule 54 (b) (see Little Adm’ v. McGraw, 250 Ark. 766, 467 S.W. 2d 163 [1971]), this rule now controls the finality and appealability of a judgment when an action, as here, involves more than one party. Consequently, in the absence of the trial court’s certification in compliance with Rule 54 (b), we have no jurisdiction to consider this appeal.

Appeal dismissed.


author: Frank Holt, Justice. Darrell Hickman, Justice,

text:
    Carl ELLIS v. STATE of Arkansas
    CR 80-61
    603 S.W. 2d 891
    Supreme Court of Arkansas
    Opinion delivered September 15, 1980

      Gibson Law Office, by: Charles S. Gibson, Dermott, for appellant.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., Little Rock, for appellee.
   Frank Holt, Justice.

A jury found appellant guilty of aggravated robbery in violation of Ark. Stat. Ann. §§ 41-2102 and 41-2103 (Repl. 1977). At the bifurcated trial, on the issue of being a habitual criminal, the state introduced a previous conviction for burglary and theft of property. The jury then found he had been previously convicted of these alleged prior felonies. His punishment, as a habitual offender, was assessed at 15 years’ imprisonment. Appellant contends the court erred in allowing the introduction of his previous conviction of burglary and theft of property as evidence of two separate prior felonies.

The state acknowledges this was error and we agree. Ark. Stat. Ann. § 41-1001 (3) (Repl. 1977) provides in pertinent part:

For the purpose of determining whether a defendant has previously been convicted or found guilty of two [2] or more felonies, a conviction or finding of guilt of burglary and of the felony that was the object of the burglary shall be considered a single felony conviction or finding of guilt . . .

The burden is on the prosecution to offer proof that the attending felony is not the object of the burglary. Steffen v. State, 267 Ark. 402, 590 S.W. 2d 302 (1979). Here no such proof was shown by the state. Therefore, appellant’s prior conviction of burglary and theft can only be counted as one offense. One prior offense, as here, will not support an enhanced sentence. § 41-1001 (1).

However, such an error does not necessarily mandate a new trial. We have reduced the sentence in lieu of reversing and remanding for a new trial. Steffen v. State, supra; McConahay v. State, 257 Ark. 328, 516 S.W. 2d 887 (1974). The authority of this court to reduce a sentence on appeal was discussed at length in Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977), cert. denied 434 U.S. 878 (1977). See also Clark v. State, 246 Ark. 876, 440 S.W. 2d 205 (1969); Wilburn v. State, 253 Ark. 608, 487 S.W. 2d 600 (1972); Abbott v. State, 256 Ark. 558, 508 S.W. 2d 733 (1974); Estes & Colburn v. State, 258 Ark. 597, 528 S.W. 2d 138 (1975); Caton & Headley v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972); Ark. Stat. Ann. § 27-2144 (Repl. 1979); and Ark. Stat. Ann. § 43-2725.2 (Repl. 1977).

Here the jury had found the appellant guilty of aggravated robbery before hearing any evidence in the bifurcated proceeding with respect to the alleged felonies, which evidence, as indicated, constituted error. The sufficiency of the evidence as to aggravated robbery is not questioned. Therefore, to avoid any possibility of prejudice to the appellant, we reduce his sentence to 5 years, the minimum for aggravated robbery, unless the state objects within 17 calendar days after this opinion becomes final. Should the state object, the judgment is reversed and the cause remanded.

Affirmed upon acceptance of modification.

Hickman, J., concurs in parts and dissents in part.

Darrell Hickman, Justice,

concurring in part, dissenting in part. I agree that the conviction has to be reversed. However, the majority is reducing the sentence, in effect. In that regard I disagree. The court has taken the position that it has no authority to reduce a sentence except in certain instances. It can reduce a sentence in a capital punishment case. Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977). Where a legal error has been made and it can be corrected without prejudice by reducing a sentence, a reduction can be made.

While I feel this court has the appellate authority to so act, I do not presume that this power ought to be exercised in every instance.

First of all, Arkansas has placed the responsibility for sentencing criminal defendants with the jury and the trial judge. While, in my judgment, that procedure is flawed, it is still the law and we should essentially respect it. The reduction in this case does not take into consideration either the sentiments of the judge or jury — it presumes those sentiments. It presumes that the prosecuting attorney, acting for the State of Arkansas, will decide if the proposed reduction ought to be accepted or the defendant retried. The offense in this case involves one of the most serious criminal offenses, aggravated robbery. The evidence was not disputed that a loaded gun was used and that at least one of the witnesses feared for her life. This is not the sort of crime where I think that we ought to presume the minimum sentence would be appropriate; that leaves only a retrial as an alternative.

The majority states that the defendant will not be prejudiced by the reduction. That is not exactly correct because who can say he would have received five years’ imprisonment. I would concede that it is not likely the defendant would have been released on probation or received a lesser term than five years, but I cannot presume, as the majority does, that he would not have received such a sentence. The minimum sentence is not five years’ imprisonment; it is a suspended sentence with no imprisonment.

The State offers no reason why a reduction should be granted in this case to cure an error. The error in this case was one that should not have been made because the statute clearly provides that when one is tried as an habitual offender and the conviction is for burglary and theft, that counts as only one conviction. Obviously the prosecuting attorney and the trial judge were not aware of the statute. The best way to deal with such errors is to require that the case be tried again. Not only is it therapeutic but it guarantees that neither the state nor the defendant will be prejudiced. I would remand the case for a new trial.


author: Darrell Hickman, Justice.

text:
    Samuel JOHNSON a/k/a Samuel KHABEER v. STATE of Arkansas
    CR 80-102
    604 S.W. 2d 927
    Supreme Court of Arkansas
    Opinion delivered September 15, 1980
    Rehearing denied October 20, 1980

      McArthur & Lassiter. P.A., Little Rock, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., Little Rock, for appellee.
   Darrell Hickman, Justice.

Samuel Johnson, also known as Samuel Khabeer, was convicted in the Pulaski County Circuit Court of criminal possession of a forgery device, two counts of forgery in the second degree, and eight counts of theft by receiving. He was sentenced to a total of 33 years’ imprisonment and, having three prior felony convictions, was ordered to serve that sentence as an habitual offender.

On appeal Johnson argues that his conviction should be reversed for two reasons. First, he stated the trial court erroneously admitted evidence obtained in an illegal search of his residence. Next, he argues that the court was wrong in trying him in his absence. We find no error and affirm the judgment.

On May 2, 1979, an employee of the Union National Bank in Little Rock became suspicious when two checks were cashed on the Barnes Tree Service Company. While a female was cashing the second check, the bank employee called the Barnes Tree Service, learned that checks numbering in sequence 2623 to 2649 had been stolen from Barnes and the check was probably forged. Before the bank employee could act, the female left the bank. The employee followed the woman and obtained the license number of the car that she entered. The Little Rock Police were called and given this information. The police located the car, followed it to the residence of Samuel Johnson, and arrested Johnson when he came back out of the house and got into the car. Johnson and his wife refused consent for a search of their residence. As Johnson was being arrested, a police officer found pieces of a check outside Johnson’s house. Pieced together, these pieces formed a check on Barnes Tree Service. The first three numbers on the check were 264.

Johnson was taken to the police station and a search warrant was obtained based on an affidavit of one of the police officers. That affidavit is reproduced as an exhibit to this opinion.

A police officer kept Johnson’s residence under surveillance while the search warrant was being obtained. The house was searched that day pursuant to the warrant. It is not disputed that the police were looking for Barnes Tree Service checks, numbered 2623 through 2649, which had been reported stolen. An extensive search was conducted but none of those checks were found. However, the police did discover a virtual bonanza of credit cards, social security cards, and identification cards, which were in the names of other people. A check protector was found belonging to the Keith Smith Company, Inc., of Hot Springs, Arkansas. Johnson was charged with two counts of forgery relating to Barnes Tree Service and numerous other charges based on the seized evidence. He was convicted on all counts.

Most of the documents were found in an attic space which was apparently being renovated to serve as a room. The space was accessible by a stairway. Other documents were found in the garbage.

Johnson’s first allegation of error is that there was no probable cause for the search. The search warrant was based on the affidavit appended which shows that there is no question that the police had probable cause in this case to obtain the search warrant. The first three numbers on a Barnes Tree Service check, found outside the Johnson residence, were 264. It had been reported that this check was one of a series of checks which had been stolen from Barnes Tree Service. The bank officials supplied information confirming that two of these checks on Barnes were passed on May 2, 1979, one by a male, one by a female. The bank employee followed the female and obtained the car license number; the police saw Johnson enter that car and apprehended him shortly thereafter.

It is not required that sufficient information to convict a person be available at the time a search warrant is obtained. The only requirement is probable cause to believe that the place to be searched contains evidence of the supposed crime. Spinelli v. United States, 393 U.S. 410 (1969). We have no doubt such cause existed in this case.

The second argument by Johnson is that the trial judge conducted the trial in his absence. On July 17, 1979, notice was sent that a nonjury trial had been set for September 4, 1979- On the morning of the trial, the judge first called the case, and discovered a pending motion to suppress the evidence. Testimony was taken on the motion; Johnson was present throughout this proceeding with his attorney. At the conclusion of that hearing, the court stated it would recess for ten minutes. When court reconvened, Johnson was not present. Nobody knew of Johnson’s whereabouts and Johnson’s attorney objected to further proceedings in Johnson’s absence. The court announced that after another recess of one hour it would reconvene and proceed with the trial in Johnson’s absence.

When the court reconvened, Johnson still was not present. It was at this time that the attorney for Johnson related that earlier in the morning Johnson had indicated his dissatisfaction with the trial judge and asked his counsel to obtain the disqualification of the judge. The judge pointed out that he had specifically asked Johnson if he so objected and Johnson had not. The judge ruled that the trial had “commenced” and that Johnson’s case could proceed in his absence.

Johnson argues that since the “trial” had not commenced, the court could not try him in absentia, citing the case of Taylor v. United States, 414 U.S. 17 (1973) as his authority. That argument is based on the right to confront witnesses as guaranteed by the Sixth Amendment to the United States Constitution.

Refined, Johnson’s argument is that technically the “trial” had not commenced prior to his departure. He contends that he left after a pretrial hearing but before the actual trial was started.

Ark. Stat. Ann. § 43-2101 (Repl. 1977) provides that when a defendant is on bail and absents himself voluntarily during a trial, the trial may proceed to a verdict in his absence. (Johnson was not sentenced until he was found and brought before the court.)

There is no doubt that in every case, except a capital case, a criminal defendant can waive the right to be present during a trial. Taylor v. United States, supra. The trial judge found that the trial had commenced, that the defendant had voluntarily absented himself, and that the defendant had waived his right to be present. We cannot say that decision was clearly wrong.

This was a nonjury case which had been set for trial for almost two months. The record begins by stating that on the trial date, “This cause came on to be heard, all parties announcing they were ready.” The judge asked the defendant, Samuel Johnson, if he had any objections to the court hearing his case. Johnson said “no.” The court asked if the parties wanted the rule; that is, if they wanted the witnesses excluded except when testifying. It was then that the court mentioned that there was a motion to suppress the search warrant and the case proceeded on that issue.

This was not the case of a hearing set specifically for pretrial; the matter was specifically set for trial. We cannot say in this case that the trial court was clearly erroneous in finding that the trial had commenced at the time Johnson voluntarily absented himself.

Affirmed.

STATE'S EXHIBIT NO. 1

IN THE MUNICIPAL COURT OF LITTLE ROCK, ARKANSAS

STATE OF ARKANSAS) ) ss COUNTS OF PULASKI)

AFFADAVIT FOR SEARCH AND SEIZURE WARRANT

The undersigned, Detective Rives of.the Little Rock Police Department, being duly sworn, deposes and says as follows:

That he, the undersigned, has reasonable cause/to beleive and upon reasonable cause does beleive that a particular residence at 1315 Jones Street, Little Rock, Arkansas, a white frame house, occupied by a black, male, Samuel Lee Johnson, 3-19-1940, and Bobbie Fields, a black female, has concealed therein fruits of the crimes of Burglary and Forgery, to-wit? a series of checks belonging to Barnes Tree Service, written on that account at Union National Bank of Little Rock, checks numbered 2623 through 2649, tending to demonstrate the offenses of Burglary and Forgery were committed and the persons who committed it.

FACTS CONSTITUTING REASONABLE CAUSE:

1. On 5-2-79 at 7:15 a.m. Ms. Nel Butler discovered that the Barnes Tree Service at 3501 1/2 Mabelvale Pike,

Little Rock, Arkansas was burglarized the previous night, and she reported that checks from the Barnes Tree Service, the Union National Bank account, check numbers 2623-2649 were taken.

2. On 5-2-1979 at approximately 12:30 to 12:45p.m. Ms. Nancy Alewine who works at Union National Bank, prospect branch, Little Rock, Arkansas cashed a check for a black male on the account of Barnes Tree Service on a Union National Bank account, payable to Michael Jones. The check was for two hundred fifty one dollars and fifty cents, ($251.50).

3. On 5-2-‘73 at approximately 1:30 p.m. Laurel Hitchens who works at Union National Bank, University Mall branch, cashed a check for a black male, about S'l", 170 pounds, wearing a blue jean shirt, and blue jeans with a blue hard hat. The check was on the account of Barnes Tree Service number £633, on the Union National Bank account amounting to $251.50, payable to Michael Jones.

4. Approximately 30 minutes later a black female came to another teller at the University Branch of Union National Bank, Rita Tarver? this check was #2641 on the Union National Bank account of Barnes Tree Service, payable to Sherry A. White amounting to $216.37. Ms. Tarver became suspicious and the black female left, leaving the check. Ms. Tarver followed her to a car which was driven by a black male. The automobile vxas a burgundy late model Pontiac, license ttHFJ-200.

5. On 5-2-79 at approximately 2:05 p.m., Det. Holladay of the Little Rock Police Department observed a burgundy late model Pontiac, license #HFJ-200. The license listed to a person at 1315 Jones Street, Little Rock, Arkansas, and the Detective saw 'the vehicle at that location. Det. Holladay watched the house, and several minutes later he observed a black male come out of the residence at-1315 Jones Street, Little Rock, Arkansas, and entered the above descrived vehicle. The suspect was stopped and he was identified as Samuel Lee Johnson, B/M, DOB 3-19-40.

6. Samuel Lee Johnson is a convicted felon, and he is suspected by the Little Rock Police Department as being heavily involved in Forgery.

7. Officers of the Little Rock Police Department placed the residence at 1315 Jones Srreet, Little Rock, Arkansas under surveillance and arrested a black female identified as Bobbie Fields at the front door of said premises.

8. From the time that the occupants of said residence were arrested until the time that a warrant will be executed, Officers of Little Rock Police Department have impounded the premises and have not allowed anyone to enter.

9. One of the surveillance officers, Det. Blaylock, who is stationed on the front steps of the impounded premises found a check torn in pieces on the steps. That check is on the account of Barnes Tree Service and the first three digits are 2 64_. Barnes Tree Service lost all of the checks numbered from 2640 through 2649 which were taken in the Burglary.

10. Denise Best of Union National Bank, Prospect 3ranch, was working 5-2-79 when a B/M cashed the check on Barnes Tree Service payable to Michael Jones for $251.50. She identified Samuel Lee Johnson in a lineup as being the person who cashed that check.

11. Samuel Johnson stated to Defectives of the Little Rock Police Department that he and Ms. Fields occupy the above described premises.

12. On 5-2-79 at 4:30 p.m. Laurel Hitchens, a Union National Bank teller at the University Mall Branch, who took check #2633 as described above, identified Samuel Lee Johnson as the parson who cashed that check.

THEREFORE, Affiant prays a Search and Seizure Warrant issue for the above mentioned property at 1315 Jones Street, Little Rock, Arkansas, and the above described automobile which has been impounded by Little Rock Police Department