author:
J. Fred Jones, Justice.
      John A. Fogleman, Justice,

text:
    Calvin BROWN and Cecil BETTIS Jr. v. STATE of Arkansas
    CR 75-27
    534 S.W. 2d 213
    Opinion delivered March 8, 1976
    [Rehearing denied April 5, 1976.]

      Pickens, Boyce, McLarty & Watson and McArthur, Lofton, & Wilson, P.A., for appellants.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., and Leroy Blankenship, 3rd Judicial Circuit Prosecuting Attorney, for appellee.
   J. Fred Jones, Justice.

Calvin Brown and Cecil Bettis, Jr. were jointly tried before a jury and convicted of the crime of burglary. They were sentenced to five years each in the Department of Correction and a 15 year sentence, with five years suspended, was added to Brown’s sentence for the use of a firearm in connection with the crime. Both Brown and Bettis have appealed to this court and are represented by separate attorneys who have filed separate briefs.

Brown and Bettis were also jointly tried and convicted at a subsequent trial on charges of robbery arising out of the same transactions or incidents as did the burglary charges. They both appealed from the judgments on the robbery convictions but their appeals in the robbery case are treated in a separate opinion.

The facts, as gathered from the evidence in the record, appear as foiiows: On a Sunday evening Mr. and Mrs. Harper returned to their home in Newport from playing bridge with friends. They unlocked the back door of their home and when they entered their living room, they were confronted by two men with stocking masks over their heads and faces. One of the intruders carried a pistol with which he forced the Harpers to lie on the floor while their hands and feet were tied with nylon cord or rope, and tape was wrapped around their heads and drawn over their eyes and mouths. Some valuable rings were taken from Mrs. Harper’s fingers; Mr. Harper’s wallet containing cards and money was taken from his pocket and he was rendered temporarily unconscious by blows on the head and shoulder with a pistol or some other instrument. The Harpers were then dragged across the floor out of the living room. Mrs. Harper heard one of the intruders in her dining room calling out what appeared to be signals on a walkie-talkie “K-l to K-2” or something like that. The intruders then left.

Mrs. Harper soon freed herself from her bonds and called the police. The police officers arrived in a matter of minutes and an ambulance was called to the scene and took the Harpers to the hospital. The glass in a side window of the Harper residence had been broken over the latch and pry marks, as if made by a screwdriver, appeared on the outside windowsill.

Mr. Eugene Tidwell, who lived about one and one-half blocks down the street from the Harper residence, had been sitting on his front steps and had observed Brown and Bettis pass his house in Bettis’s automobile with Bettis driving. He observed the Bettis automobile stop for a few minutes on three different occasions within a short period of time between his house and the Harper residence, the last stop being closer to the Harper home than to his own. Soon after he last saw the Bettis automobile stop, and then move on, he heard the sirens from the ambulance and police vehicles and observed the commotion as the vehicles converged at the Harper residence. He walked up to the Harper residence and upon inquiry by the investigating officers, he advised them of what he bad seen in relation to Brown and Bettis, and described the Bettis automobile to the officers.

Through radio communication between the police officers, a roadblock was immediately set up between Newport and Batesville. Bettis’s name and his automobile description were radioed to officers manning the roadblock and within a short period of time Brown and Bettis appeared and stopped at the roadblock in Bettis’s white over yellow Chrysler automobile with Bettis driving.

The officers searched Brown and Bettis at the roadblock and brass knuckles were removed from Brown’s hip pocket. As Brown got out of Bettis’s automobile, the officers observed and removed from the floorboard of the automobile, on the passenger side where Brown had been sitting, a loaded .45 caliber semi-automatic pistol.

Brown and Bettis were placed under arrest and taken in a police patrol car to the police station in Newport. Bettis’s automobile was also driven to the police station where it was searched that same evening. A walkie-talkie radio transmitter-receiver was found under the front seat on the passenger side of the automobile. A loaded .25 caliber semiautomatic pistol was found under the armrest between the driver and passenger side of the front seat. A briefcase containing a .45 caliber size pistol holster, a flashlight, and some .38 and .45 ammunition were found in the trunk. Three screwdrivers were found in the back seat and one of the diamond rings taken from Mrs. Harper’s fingers was found between the backrest and seat cushion in the rear seat of the automobile. The officers returned to the scene of the roadblock and in searching the ditches and shoulders of the highway in the direction from which the Bettis automobile had approached, they found a brown paperbag containing Mr. Harper’s wallet. The wallet was found in the ditch on what would have been Bettis’s righthand side of the highway, about 75 or 80 yards from where the roadblock had been maintained, and within plain view of the roadblock. The wallet contained Harper’s driver’s license, his ID and credit cards but no money.

As already stated, the appellants are represented by separate counsel and have filed separate briefs on this appeal. In some instances they have designated the same points on which they rely for reversal and in other instances they have designated separate points not common to both, so we shall discuss the designated points accordingly.

The appellant Brown contends that his arrest was illegal. Both Brown and Bettis contend that the search of the Bettis automobile was illegal, and that the trial court erred in overruling their motions to suppress evidence obtained in the search. We find no merit in these contentions.

Brown argues that his arrest at the roadblock was illegal because it was without probable cause. State policeman Noel Baldridge, who made the arrest, had received information by police radio that a robbery had just occurred in Newport; that Bettis was a prime suspect and that his automobile should be stopped. State Police Lieutenant Wilson broadcast the information to Baldridge and, aside from information that Bettis and Brown had just left the scene of the crime, Wilson had independent information of other similar crimes in which Bettis and Brown had been involved or suspected.

The arresting officer is entitled to credit for the collective knowledge of the entire police team in such cases. Johnson v. State, 249 Ark. 208, 458 S.W. 2d 409. In United States v. Stratton, 453 F. 2d 36 (8th Cir. 1972), cert. denied 405 U.S. 1069, the court said:

“We think the knowledge of one officer is the knowledge of all and that in the operation of an investigative or police agency the collective knowledge and the available facts are the criteria to be used in assessing probable cause. ”

Furthermore, all automobiles were being stopped at the roadblock and a loaded .45 caliber pistol was found on the floorboard where Brown was sitting and brass knuckles were found in his hip pocket.

Both appellants argue that the affidavit upon which the search warrant was issued was insufficient because it contained hearsay, which was constitutionally impermissible under Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969), since the reliability of the hearsay source was not established and the statements were insufficient to show probable cause anyway. The Aguilar and Spinelli decisions require that the affidavit for a search warrant contain sufficient information to enable the issuing magistrate to determine that the hearsay informant is reliable, and that sufficient underlying circumstances be related to establish probable cause for the warrant. Overstrict interpretation of the rule laid down in Aguilar and Spinelli has been tempered and clarified by a number of decisions since Aguilar and Spinelli. In United States v. Bell, 457 F. 2d 1231 (5th Cir. 1972), the court said:

“. . . [A] specter has arisen in this case that deserves to be laid to rest. It is now a well-settled and familiar concept, as enunciated by Aguilar and Spinelli, that supporting affidavits in an application for a search warrant must attest to the credibility of an informant and the reliability of his information. * * * We have discovered no case that extends this requirement to the identified bystander or victim-eyewitness to a crime, and we now hold that no such requirement need be met. . . Such observers are seldom involved with the miscreants or the crime. Eyewitnesses by definition are not passing along idle rumor, for they either have been the victims of the crime or have otherwise seen some portion of it. A ‘neutral and detached magistrate’ could adequately assess the probative value of an eyewitness’s information because, if it is reasonable and accepted as true, the magistrate must believe that it is based upon first-hand knowledge. Thus we conclude that Aguilar and Spinelli are limited to the informant situation only.”

See also United States v. Burke, 517 F. 2d 377 (2nd Cir. 1975); United States v. Unger, 469 F. 2d 1283 (7th Cir. 1972), cert. denied 411 U.S. 920 (1973); United States v. Mahler, 442 F. 2d 1172 (9th Cir. 1971), cert. denied 404 U.S. 993 (1971); United States v. McCoy, 478 F. 2d 176 (10th Cir. 1973), cert. denied 414 U.S. 828 (1973); United States v. Rajewich, 470 F. 2d 666 (8th Cir. 1972); People v. Glaubman, 175 Colo. 41, 485 P. 2d 711 (1971); Galloway v. United States, 326 A. 2d 803 (D.C. App. 1974); Wolf v. State, 281 So. 2d 445 (Miss. 1973); State v. Paszek, 50 Wis. 2d 619, 184 N.W. 2d 836 (1971); Erickson v. State, 507 P. 2d 508 (Alaska 1973); Mobley v. State, 270 Md. 76, 310 A. 2d 803 (1973).

The affidavit for search warrant contained information appearing in the record as follows:

“At 6:15 the Police Dept, received a call from Harpers Home at 806 Third, that there had been a robbery, Officers arrived and found Mr. & Mrs. Harper tied up. They advised there were two subjects who were waiting for them when they arrived, they were armed. Cecil Bettis, Jr. was seen parked beside the Harpers home just prior to the robbery, with another subject with him. A.P.B. was placed on Bettis and the subject was arrested at Salado, and had in his possession a .45 Auto. Subject Calvin Brown who had been arrested in the past for Arson, was with him. (over)
and a pair of Brass Knuckles, Subject Calvin Brown was also implicated in a Burglary involving Robert Holden’s House. The subjects had just enough time to get to Salado, from the time the Harpers were robbed.”

We are of the opinion that the affidavit met our own requirements as stated in Walton & Fuller v. State, 245 Ark. 84, 431 S.W. 2d 462 (1968). In French v. State, 256 Ark. 298, 506 S.W. 2d 820 (1974), we said: “We do not deem it necessary for an affiant applying for a search warrant to state reasons why a public official is a credible or reliable informant.” Under the evidence in the case at bar a search warrant would not have been necessary under our decisions in Easley v. State, 255 Ark. 25, 498 S.W. 2d 664 (1973). Cox v. State, 254 Ark. 1, 491 S.W. 2d 802 (1973); Wickliffe & Scott v. State, 258 Ark. 544, 527 S.W. 2d 640 (1975).

We are of the opinion that the affidavit contained sufficient information to justify the magistrate in issuing the search warrant and that the search warrant was valid. Furthermore, the automobile belonged to Bettis and according to the testimony of Lieutenants Wilson and Pankey, Bettis authorized the search before the warrant was issued and further advised that no search warrant was necessary after the warrant was issued. The voluntariness of consent to search is a question of fact to be determined from all the circumstances. Schneckloth v. Bustamante, 412 U.S. 218 (1973); United States v. Gavic, 520 F. 2d 1346 (8th Cir. 1975). We are of the opinion and so hold that the trial court did not err in overruling the appellants’ motions to suppress the evidence obtained in the search of the automobile.

Brown contends that the trial court erred in denying his motion for a preliminary hearing prior to trial. We find no merit in this contention. In Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854 (1975), the Supreme Court said:

“. . . [W]e adhere to the Court’s prior holding that a judicial hearing is not prerequisite to prosecution by information. * * * Nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction. * * * Thus, as the Court of Appeals noted below, although a suspect who is presently detained may challenge the probable cause for that confinement, a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause.”

We have several times held that the provision of Ark. Stat. Ann. § 43-601 (Repl. 1964), relied on by the appellant, is directory and not mandatory. There can be no reversible error solely because of a failure to take one lawfully arrested before a magistrate for preliminary examination. Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458 (i969), and other cases therein cited.

Brown contends that the trial court erred in denying his motion for severance. The granting or denial of a motion for severance in noncapital cases lies within the sound discretion of the trial judge. Lewis v. State, 220 Ark. 914, 251 S.W. 2d 490 (1952); Johnson & Loyd v. State, 247 Ark. 1086, 449 S.W. 2d 954 (1970). See also Ballew v. State, 246 Ark. 1191, 441 S.W. 2d 453 (1969), and Cox v. State, 257 Ark. 35, 513 S.W. 2d 798 (1974).

Bettis contends that the trial court erred in allowing his former wife to testify as a witness for the state in violation of Ark. Stat. Ann. § 43-2019 (Repl. 1964). This contention is without merit for the reason there was no objection made when his former wife was called to testify and this witness was not the appellant Bettis’s wife at the time of the occurrence or at the time she testified.

Bettis also contends that inflammatory and prejudicial remarks made by the prosecuting attorney prejudiced his case. This contention relates to cross-examination of appellant Bettis, who testified in his own defense. He was asked on cross-examination if he then had a gun on his person and whether or not he had made certain threats of bodily harm if he was not acquitted. He denied having a gun or making such threats. Upon the examination of Mr. Bullard, a witness called by the appellant Bettis, the prosecuting attorney suggested to the court that Mr. Bullard be advised of his constitutional rights against self-incrimination prior to his testimony. Bettis’s attorney objected to the comment and the objection was sustained. On cross-examination then the prosecuting attorney apologized for his remark if it was considered unfair and stated: “There has been some testimony here that made me think that the questions asked of you might have been different.” At this point the appellant’s attorney moved for a mistrial and the motion was denied. The appellant’s attorney then requested the court to instruct the jury to disregard the statement and the. court did so admonish the jury. An attorney has considerable latitude in cross-examining a witness in a criminal case as rather thoroughly set out in Butler v. State, 255 Ark. 1028, 504 S.W. 2d 747 (1974). We are of the opinion that the trial court did not err in overruling Bettis’s motion for a mistrial.

Appellant Brown has designated additional points on which he relies for reversal as follows:

4
“The trial court erred in refusing appellant’s motion for continuance and severance due to co-defendant’s counsel introducing evidence prejudicial and inadmissable as to appellant.
5
The trial court erred in requiring appellant to proceed with the defense prior to co-defendant presenting his testimony.
6
The trial court erred in requiring appellant to take the stand when called as a witness by the co-defendant.
7
The trial court erred' in quashing a subpoena duces tecum for the tax records of the prosecuting witness.
8
The trial court erred in refusing appellant’s motion for mistrial based upon prosecuting attorney’s repeated references to other charges pending against appellant.
9
The trial court erred in not requiring the prosecuting attorney to produce witnesses as previously ordered that would have provided testimony beneficial to appellant.
10
. The trial court erred in placing unreasonable and prejudicial limitations on appellant’s cross examination of the co-defendant.
11
The trial court erred in denying appellant’s motion for a directed verdict of acquittal.
12
The trial court erred in instructing the jury on the firearm enhancement statute, and further erred in attempting to clarify said instruction orally for the jury.”

The appellant Brown recognizes the close relation between his third, fourth, fifth and sixth points and has argued them together. We agree that the trial court erred in requiring Brown to take the witness stand when called as a witness by his co-defendant Bettis. We, therefore, see no reason to discuss appellant’s fourth and fifth points as they are not likely to arise again on retrial.

Ark. Stat. Ann. § 43-2016 (Repl. 1964) provides as follows:

“On the trial of all indictments, informations, complaints, and other proceedings against persons charged with the commission of crimes, offenses and misdemeanors in the State of Arkansas, the person so charged shall, at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him.”

This court has not had occasion to pass on the question of whether a defendant may call his co-defendant as a witness and force him to either testify or assert his privilege against self-incrimination before the jury that is trying both together. We find few decisions from other jurisdictions on this particular point, but in People v. Owens, 291 N.Y.S. 2d 313, the court said:

“[T]he privilege against self-incrimination is violated whenever a criminal defendant is compelled to take the stand and claim his privilege, whether at the behest of the prosecution or a codefendant. ”

Brown contends as his seventh point that the trial court erred in quashing a subpoena duces tecum for the tax records of the prosecuting witness Mr. Harper. Prior to tria! appellant Brown filed a motion for subpoena duces tecum for the tax records of the prosecuting witness Harper and the motion was granted. Harper filed a motion to quash the subpoena duces tecum and after hearing on the motion it was granted and the subpoena duces tecum was quashed. The appellant Bettis had indicated in his testimony that he and Harper had been long-time friends and had participated in “fixing” horse races; that Harper while county judge had overpaid him for work he did for the county, and that Harper had discussed with him fictitious burglaries and robberies in order to collect money from insurance companies. These activities were emphatically denied by both Mr. and Mrs. Harper on cross-examination, and in support of his seventh point Brown argues as follows:

“. . . Harper’s activities and misappropriating funds from the County, fixing horse races and fraudulent insurance schemes makes it clear that such taje records would have been relevant and would have gone to the credibility of prosecuting witness. It is maintained by Appellant that the quashing of said subpoena does not meet the statutory requirements and to do so deprived Appellant of evidence that could have been used at his trial. For the foregoing reasons, Appellant respectfully moves this Court to reverse his conviction hereunder.”

The trial court ruled the tax records collateral and inadmissible for the purpose they were sought and we think the trial court was right.

In Spence v. State, 184 Ark. 139, 40 S.W. 2d 986 (1931), we said:

“It is well settled, however, in this State that a party who cross-examines a witness on collateral matters for the purpose of testing his credibility as a witness is bound by his answers and cannot contradict his testimony on a collateral issue. The reason for the rule is to avoid a multiplicity of issues which would tend to confuse and divert the minds of the jury from the main issue.”

In Fulwider v. Woods, 249 Ark. 776, 461 S.W. 2d 581 (1971), we said:

“A wi ess cross-examined as to matter collateral to the issues cannot be impeached by the cross-examining party by evidence contradicting his testimony. Taylor v. McClintock, 87 Ark. 243, 112 S.W. 405. The test of whether a fact is collateral is whether the cross-examining party would be entitled to prove it as a part of his evidence in chief. Randall v. State, 239 Ark. 312, 389 S.W. 2d 229.”

We deem it unncessary to discuss the appellant Brown’s eighth, ninth, tenth and eleventh assignments as they are not likely to arise again on retrial.

As to appellant Brown’s twelfth point, we agree that the trial court erred in determining the penalty for employing a firearm in connection with the crime under Ark. Stat. Ann. § 43-2336 (Supp. 1975) rather than permitting the jury to fix the additional penalty under proper instructions.

Ark. Stat. Ann. § 43-2336 (Supp. 1975) reads as follows:

“On and after July 1, 1969, any person convicted of any offense which is now, or may hereafter be, classified by the laws of this State as a felony, and the person so convicted employed any firearm of any character as a means of committing or escaping from said felony, may, in the discretion of the sentencing court, be subjected to an additional period of confinement in the State penitentiary for a period not to exceed fifteen (15) years. ”

We held this statute constitutional in Redding v. State, 254 Ark. 317, 493 S.W. 2d 116, and also in Redding we said:

“We are of the view that the legislature’s use of the words ‘sentencing court’ was intended by the legislature to refer either to the judge or the jury and that the factual issue as to the use of a firearm is to be determined by the trial court if a jury is waived and otherwise by the jury as in the case at bar.”

Since our opinion in Redding v. State, supra, we have noted the difficulty encounterd where a jury fixes the primary penalty upon conviction and finds that a firearm was employed and the trial judge rather than the jury fixes the enhanced penalty under the statute. See Johnson v. State, 249 Ark. 208, 458 S.W. 2d 409. We have concluded, therefore, that in assessing the penalty under § 43-2336, supra, the fact finder, whether it be a jury or a trial judge sitting as a jury, should not only determine whether a firearm was employed under the provisions of § 43-2336, supra, but should also assess the enhanced penalty when the employment of a firearm is so found. Cotton v. State, 256 Ark. 527, 508 S.W. 2d 738.

The judgment is affirmed as to Bettis and reversed and remanded for a new trial as to Brown.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I cannot agree that the affidavit for the search warrant contained sufficient showing of probable cause. The statement that “Cecil Bettis,, Jr. was seen parked beside the Harper’s home just prior to the robbery, with another subject with him” was obviously necessary to a finding of probable cause. It is just as obviously hearsay. The deficiency is not in failure to support the credibility and reliability of an identified informant and his information or of a victim. The informant is totally unidentified. I take this to be a fatal defect.

I would still agree that there was no error in the trial court’s refusal to suppress the evidence seized as a result of the search. There was evidence sufficient to sustain the circuit judge’s holding that the search was valid as a “consent” search. There was no evidence of coercion or promises to obtain the consent of Bettis to the search. He had been given Miranda warnings. The only factors militating against the validity of the consent were the fact that Bettis was in custody in the city hall and the absence of any affirmative evidence that Bettis knew that he could withhold consent. There would simply be no basis for our overturning the finding of fact made by the circuit judge in this respect. See United States v. Watson, — U.S. —, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976).

Although the trial judge did not sustain the search as a valid automobile search, the undisputed evidence shows that it was, in my opinion. There was probable cause for the arrest of Bettis and Brown. The automobile driven by Bettis was stopped at a roadblock on Highway 4, late in the afternoon. The traffic was fairly heavy, as the arresting officer estimated that he stopped about 100 cars in a 30 minute period before the arrest and another 100 between that time and the time when other officers arrived. The officer manning the roadblock was alone when the arrest was made. He took a weapon out of the car and another from one of its occupants. All this officer could do was to see that the vehicle was not molested by anyone and that Bettis and Brown did not escape. One of the officers who came in response to the arresting officer’s report drove the vehicle back to Newport. Darkness was then approaching. One of the searching officers explained that a search there was not feasible under the existing conditions and that it would have been dangerous to have left the automobile on the highway.

One of the victims of the crime had been struck with a weapon that could have been brass knuckles. The pistol found in the automobile fit the description of a weapon given by one of the victims as having been used by the burglars. At the time of the automobile search, there is no doubt that the searching officer had, as he testified, knowledge of sufficient facts to cause him to believe that it contained stolen articles, weapons or other evidentiary material.

In this respect, I suppose that I am only agreeing with the majority’s unarticulated position, when it said that a search warrant would not have been necessary. I do want to make it clear, however, that I do not consider the search at the police station to have been a valid search incident to an arrest or as a “plain view” search. My position on this point is similar to that I took in concurring in Byars v. State, 259 Ark. 158, 533 S.W. 2d 175 (1976).


source: Caselaw Access Project

author: J. Fred Jones, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    Calvin BROWN and Cecil BETTIS Jr. v. STATE of Arkansas
    CR 75-52
    534 S.W. 2d 207
    Opinion delivered March 8, 1976
    [Rehearing denied April 12, 1976.]

      Pickens, Boyce, McLarty & Watson and McArthur, Lofton & Wilson, P.A., for appellants.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen. and Leroy Blankenship, 3rd Judicial Circuit Prosecuting Attorney, for appellee.
   J. Fred Jones, Justice.

Calvin Brown and Cecil Bettis Jr. were jointly tried and convicted of robbery at a jury trial in the Jackson County Circuit Court and they were each sentenced to the Department of Correction for a period of 21 years.

Both Brown and Bettis were convicted of burglary in connection with the same incident. Appellant Brown’s burglary conviction was reversed and appellant Bettis’s conviction was affirmed by separate opinions being handed down today in case No. CR75-27. The pertinent background facts are set out in our opinion on the burglary convictions and will not be reiterated in this opinion. As in the burglary cases, Brown and Bettis were represented by separate counsel and have filed separate briefs in this appeal from their convictions of robbery; and, as in their appeal from the burglary convictions, they have designated separate points on which they rely for reversal, some of which were designated in the burglary appeal and disposed of in our opinion in that case.

On his appeal in the case at bar Bettis has designated the point he relies on as follows:

“The search warrant should have been suppressed.”

We have thoroughly examined and treated this point in our opinion in the burglary case and found no merit in this contention.

Brown has designated the following points on which he relies for reversal in the case at bar as follows:

I
“The trial court erred in denying appellant’s motion to suppress the evidence obtained due to an illegal arrest and illegal search.
II
The trial court erred in denying appellant’s motion for a preliminary hearing prior to trial.
III
The trial court erred in denying appellant’s motions for severance and/or continuance.
IV
The trial court erred in quashing a subpoena duces tecum for the tax records of the prosecuting witness.
V
The trial court erred in allowing a witness to testify about a previous common non-related conversation with appellant.
VI
The trial court erred in unreasonably restricting appellant’s cross-examination of the co-defendant and other witnesses.
VII
The trial court erred in not allowing appellant to put on testimony of subpoenaed witnesses.
VIII
The trial court erred in denying appellant’s motion for mistrial.
IX
The trial court erred in denying appellant’s motion for directed verdict of acquittal.”

Appellant Brown’s first two points relied on in the case at bar were also relied on by him in the appeal from the burglary conviction, and we deem it unnecessary to reiterate what we said in our opinion in that case.

Appellant’s third point that the trial court erred in denying his motion for severance or continuance is without merit. He argues that in the burglary trial, some 40 days prior to his trial in the present case, antagonism between him and Bettis was apparent; that considerable publicity had been given to the previous trial and that he was prejudiced by being jointly tried in the case at bar with Bettis. He argues that his co-defendant used prejudicial tactics which prejudiced his case. We find no merit to this contention.

In Finley v. State, 233 Ark. 232, 343 S.W. 2d 787 (1961), this court said:

“Counsel for appellant does not specify wherein the court abused its discretion in refusing to grant a severance, and we find no evidence in the record to indicate that appellant was prejudiced by the refusal of the trial court to grant the motion.”

We come to the same conclusion in the case at bar. The appellant argues that his motion for continuance should have been granted because the jury had been prejudiced by extensive media coverage of the burglary trial involving the same parties and circumstances, which trial had occurred only 40 days before his trial in the case at bar. The record before us does not contain the voir dire of the jury and if any members of the jury had been prejudiced by the prior trial, such prejudice should have been revealed on voir dire. In Keith v. State, 218 Ark. 174, 235 S.W. 2d 539 (1951), this court said:

“Assignments Nos. 7, 8, 9 and 11 of the motion for new trial allege improper influence upon and misconduct of the jury which resulted in defendant’s not receiving a fair trial. In the absence of anything in the record to support this assignment of error, they will not be considered. Conley v. State, 180 Ark. 278, 21 S.W. 2d 176.”

We find nothing in the record that would indicate that the trial court abused its discretion in failing to grant the appellant Brown’s motion for severance or continuance.

Under his fourth point Brown contends that the trial court erred in quashing a subpoena duces tecum for the tax records of the prosecuting witness Mr. Harper. The tax records were sought for the purpose of questioning the credibility of the testimony of Mr. and Mrs. Harper, and the situation arose in the following manner: The appellant Bettis testified as to his long acquaintance and friendship with Mr. and Mrs. Harper, the prosecuting witnesses and victims of the robbery. His testimony indicated that he and Harper had engaged, or been associated together, in prior illegal activities.

On direct examination Mr. and Mrs. Harper testified as to the treatment they received and the property taken in the course of the robbery and in answers to questions on cross-examination, they denied participating in any illegal activities with appellant Bettis.

Subpoena duces tecum for Harper’s tax records was. issued on the appellant’s motion but was then quashed on Harper’s motion. The appellant Brown argues that Ark. Stat. Ann. § 28-803 (Repl. 1962) provides the method for vacating an order requiring production of records, and that Harper did not state in his motion or prove either of the two grounds stated therein. The appellant then argues that from testimony brought out during the trial, there was indication that Mr. Harper had misappropriated funds from the county; that he had engaged in fraudulent insurance schemes and in activity of “fixing horse races.’’ The appellant then argues that the tax records would have been relevant in going to the credibility of the prosecuting witness’s testimony, and that the quashing of the subpoena deprived the appellant of evidence that could have been used at his trial. This same argument was advanced by Brown and rejected in our opinion on appeal from the burglary convictions.

' Ark. Stat. Ann. § 28-803 (Repl. 1962) was expressly repealed by Act 17 of the 1973 General Assembly which became effective on July 1, 1973. Ark. Stat. Ann. § 28-537 et seq. (Supp. 1975). Be that as it may, the evidence sought through the subpoena duces tecum was for the purpose of impeaching the credibility of Mr. and Mrs. Harper’s testimony brought out on cross-examination and the trial court was correct in holding that the evidence thus sought was collateral to the issues before the court and would be inadmissible for the purpose for which it was sought and intended.

In addition to Fulwider v. Woods, 249 Ark. 776, 461 S.W. 2d 581, and Spence v. State, 184 Ark. 139, 40 S.W. 2d 986, cited in our opinion in the burglary case, see also McArthur v. State, 59 Ark. 431, 27 S.W. 628, and McAlister v. State, 99 Ark. 604, 139 S.W. 684. In McAlister we quoted with approval as follows:

“ ‘In order to avoid an interminable multiplicity of issues, it is a settled rule of practice that when a witness is cross examined on a matter collateral to the issues he can not, as to his answer, be subsequently contradicted by the party putting the question. The test of whether a fact inquired of in cross examination is collateral is this: Would the cross examining party be entitled to prove it as part of his case, tending to establish his plea?’
# * *
‘A cross examining party is concluded by the answer which the witness gives to a question concerning a collateral matter, and no contradiction will be allowed, even for the purpose of impeaching the witness.’ ”

Under his fifth assignment appellant Brown contends that the trial court committed reversible error by allowing witness Tidwell to testify concerning a conversation between Tidwell and Brown which occurred approximately two weeks before the robbery. Tidwell’s testimony appears as follows:

“Q. What did Mr. Brown say to you, Eugene?
A. He just walked up there where I was standing there and he asked me how I was doing, was I playing it cool or keeping it cool or something.
Q. What did that mean to you?
A. Sir, I don’t know.
* ♦ *
A. He asked me, he said ‘have you been keeping it cool’ or you know keeping out of trouble, and I said ‘yes, I have.’ and he asked me how I like to make a little money and I said ‘well, I’m not interested myself.’ ”

The appellant made timely objection to this testimony as irrelevant, this testimony of Tidwell did not contain a fact that could have possibly aided in the conviction of the appellant. Under such circumstances the testimony was not prejudicial. Weber v. State, 250 Ark. 566, 466 S.W. 2d 257 (1971). In Weber this court said:

“Actually, the witness knew no facts that connected Weber with the offense of stealing the boat. ... It is true that the testimony was of no value to the state, but, that being true, we certainly can not find any prejudice. No fact was testified to that could have possibly aided in the conviction, and if the testimony was inadmissible, it certainly has not been demonstrated that it was prejudicial. See Stout v. State, 244 Ark. 676, 426 S.W. 2d 800.”

Under his sixth and seventh points appellant Brown assigns as error the trial court’s refusal to allow him to question co-defendant Bettis and call two other witnesses concerning alleged horse race fixing done by Bettis and Harper, the prosecuting witness. Appellant’s purpose in asking these questions and attempting to call these witnesses was to impeach the credibility of the prosecuting witnesses Mr. and Mrs. Harper. This effort to impeach the Harpers’ testimony was in violation of Ark. Stat. Ann. § 28-707 (Repl. 1962), and is also covered in what we have said in relation to the appellant’s fourth assignment, supra.

The appellant Brown contends under his eighth assignment that the trial court erred in denying his motion for mistrial. This contention is without merit. In Perez v. State, 249 Ark. 1111, 463 S.W. 2d 394 (1971), this court set out the rule for overturning a trial court’s ruling on a motion for mistrial as follows:

“We have uniformly held that, because of the wide latitude of discretion vested in the trial judge in granting or denying a motion for a mistrial, we will not reverse a judgment because of his action on such a motion in the absence of an abuse of that discretion or manifest prejudice to the complaining party. Shroeder v. Johnson, 234 Ark. 443, 352 S.W. 2d 570.”

The allegedly prejudicial testimony occurred upon cross-examination of appellant Bettis and appears in the record as follows:

“Q. Since you have been awaiting trial on this charge did you and Calvin Brown go down to Betty Johnston’s at Possum Grape and sit there around the table and handle and discuss and sort out jewelry that had been stolen in other robberies besides this one?
A. No, sir. To my knowledge Calvin Brown hasn’t been to Betty Johnston’s since before this robbery and for a good deal before, I don’t know.
Q. Do you know that Betty Johnston has turned over to the State Police the jewelry that was stolen in this other job?
BY MR. HARKEY: I object to that question and ask that the jury be admonished to disregard it. The question was asked and answered whether an act was committed, Your Honor, and I know he knows better, I know he is a better lawyer; this is improper.
BY THE COURT: Sustained. Ladies and Gentlemen of the jury, you are instructed to disregard the last question asked of this witness by the Prosecuting Attorney.
Q. During one of these times you had moved out from Possum Grape and somebody else had moved in, since you have been out on bail awaiting trial did you threaten to kill Betty if she didn’t tell you what she had done with the jewelry you and Calvin left there?
A. No.
BY MR. McARTHUR: Your Honor, may I approach the bench, please?
BY THE COURT: Yes, sir.
BY MR. McARTHUR: I ignored the first question by the Prosecuting Attorney concerning my client but I don’t feel I can ignore the second accusation of crime which is totally and utterly unrelated. The Prosecuting Attorney keeps bringing up other crimes in his questioning committed by my client that have no bearing on this trial and on behalf of Calvin Brown I move for a mistrial.
BY THE COURT: Overruled, but if you want to move in limine that he not attempt to do through this witness what I refused to permit, I will grant that.
BY MR. McARTHUR: I do ask the Court to admonish him.
BY MR. BLANKENSHIP: I consider myself admonished.”

The trial judge admonished the jury to disregard the questions which accused the appellant Brown of earlier wrongful acts, and the answers to these questions were actually favorable to the appellant. We find no abuse of discretion justifying a reversal in the case at bar.

The appellant Brown’s final contention that the trial court erred in denying his motion for a directed verdict of acquittal is without merit. A directed verdict should be granted only when there is no factual issue to go to the jury. Parker v. State, 252 Ark. 1242, 482 S.W. 2d 822 (1972); Fortner & Holcombe v. State, 258 Ark. 591, 528 S.W. 2d 378 (1975). Certainly there were factual issues for jury determination in this case.

The judgments as to both Bettis and Brown are affirmed.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur in the majority holding relating to the suppression of evidence obtained by search for the same reasons given in my concurring opinion in Brown v. State, No. CR-75-27, 259 Ark. 449, 534 S.W. 2d 213 (1976).

I concur in the court’s action on Brown’s motion for severance only because the ground argued here, i.e., the antagonism of the co-defendant Bettis, was not asserted in the trial court. Since this issue is raised for the first time on appeal, we could not well say that the circuit judge abused his discretion in that respect.


author: Conley Byrd, Justice.

text:
    B. G. WEST and Betty WEST v. Beryl F. ANTHONY Sr. and Oma Lee ANTHONY
    75-220
    533 S.W. 2d 518
    Opinion delivered March 8, 1976

      Brown, Compton & Prewett, for appellants.

      Spencer & Spencer, for appellees.
   Conley Byrd, Justice.

The principal issue on this appeal is whether appellees, Beryl F. Anthony Sr. and Oma Lee Anthony, his wife, have a right to enforce a restrictive covenant in the title of appellants, B.G. West and Betty West, his wife. The record shows that one Mellor was a common owner and that in 1925 he created Mellor’s Third Subdivision to the City of El Dorado consisting of Blocks 9, 10, 11 and 12. Blocks 9, 10 and 12 were each divided into eight lots. Block 11 was not subdivided into lots but has been sold by Mellor or his heirs in parcels. The common grantor has conveyed all of the property in Mellor’s Third Subdivision, and except for one or two conveyances, all of the conveyances contain restrictive covenants similar to those set out in the conveyances to the parcels .now owned by appellants and appellees. The restriction set forth in the titles of the parties hereto reads:

“This conveyance is made subject to the following conditions:
The first improvements placed on said property shall be a residence or dwelling house, together with such customary outhouses as the owner may elect to erect on said lot, and said building shall not cost less than Five Thousand Dollars, and no building or structures except the steps to any house to be erected shall be located less than thirty (30) feet from the front or street line. Said property shall be used as residence property.”

The properties of both parties hereto front on North Madison Street. This litigation was commenced after appellees objected to the construction of a carport by appellants within the 30 ft. restriction. The trial court found the issues in favor of appellees and enjoined the construction of the carport. For reversal, appellants rely upon the points hereinafter discussed.

1. We find four ALR annotations on “Restrictive Covenant — Who May Enforce,” see Annot., 21 ALR 1281 (1922), Annot., 33 ALR 676 (1924), Annot., 89 ALR 812 (1933), and Annot., 51 ALR3d 556 (1971). The rule with respect to who may enforce such covenants when there is a general scheme of development is set forth in Annot., 21 ALR 1281, 1288 (1922), which quotes from Nottingham Patent Brick & Tile Co. v. Butler, 16 Q.B.D. 788 (1886), as follows:

“. . . There are two lines of cases to be found in the books. The first is where there has been a sale of part of a property with no then-existing intention of selling the rest, and subsequently there is a sale of another part; then, as regards the later sale, you cannot look at the conditions of thé former sale; you must look only at the conditions relating to the later sale. The other line of cases is where the whole of a property is put up for sale (not necessarily under a building scheme), but is put up for sale in lots subject to certain restrictive covenants; then it is a question of fact whether it was or was not the intention that the restrictive covenants should be entered into for the benefit of each of the purchasers as against all the others, and it is a most material circumstance whether the vendor reserves any part of the property for himself. If he does not reserve any part, that is almost, if not quite, conclusive (unless there is something contradictory) that the covenants which he takes from the purchasers are intended for the benefit of each purchaser as against the others,”

To counteract the general scheme rule, appellants make two contentions: (1) That the restrictive covenant was not placed in all of the deeds — citing Stevenson v. Spivey, 132 Va. 115, 110 S.E. 367, 21 ALR 1276 (1922) and (2) That the common grantor waived the restrictions as to appellees or their predecessors in title.

We can find no support for appellants in Stevenson v. Spivey, supra, for it was there pointed out that the common grantor sold lots in either part of its plats at will and without regard to restrictions. In so holding, the court there stated:

"... It is true that in the portion of the property in which the appellant’s lots are situated a very decided majority of deeds from the company contain the building restriction in question, that this territory is largely devoted to residential purposes, and that the building line has generally been observed in the erection of residences. But it is equally true that in all parts of the plat, including that in the near vicinity of the appellant’s property, some residences and other structures have been erected within a distance of less than 25 feet of the front line of the lots, and that the company has apparently at all times omitted the restriction in accordance with its own purposes and pleasure.”

Neither do we find any relief for appellants in the alleged waiver from the common grantor which provides:

“. . . do hereby waive and set aside for the use and benefit of MRS. HILDA ZAVELO all restrictions set out in that certain warranty deed made by ourselves . . . under date of November 26, 1937. . . .
The restrictions in said deed are being waived because the grantee has complied with the restrictions in full.”

First, the restriction apparently applies only to the first improvements placed on the property, and the alleged waiver is nothing more than an acknowledgment that the improvements complied with the restrictions. Second, the authorities hold that a release by the common grantor is subject to the rights of other parties, Allen v. Massachusetts Bonding & Ins. Co., 248 Mass. 378, 143 N.E. 499, 33 ALR 669 (1924).

2. Appellants, relying upon Linder Corp. v. Pyeatt, 222 Ark. 949, 264 S.W. 2d 619 (1954), contend that deeds as to properties in other Mellor subdivisions and testimony as to construction upon other properties were inadmissible to show the grantor’s intent. The case of Linder Corp. v. Pyeatt, supra, goes no further than to hold that, if the language of a restrictive covenant is plain and unambiguous, it is unnecessary and improper to inquire into the surrounding circumstances and purposes of the restriction for aid in its construction. The restrictive covenant here involved is not so plain and unambiguous as to who may enforce the provisions thereof to prevent the proof offered by appellees.

3. Another contention by appellants is that the language “front or street line” means the actual curb line rather than the platted line of the particular street. We find no merit to this contention. Street line when used in connection with platted lots and blocks ordinarily means the platted street line. See Yoemans v. Herrick, 178 Mo. App. 274, 165 S.W. 1112 (1914).

4.Finally, appellants suggest that we should remand this case to permit them to furnish proof that the general building scheme established by the common grantor has been abandoned. We find no merit to this contention. On rare occasions we have remanded a case in chancery for further development, but in all sucfr cases it has occurred because of some conduct or ruling of the trial court on a theory that made it unnecessary or impractical for a party to put on his proof upon a particular issue. However, here there was nothing to prevent appellants from making whatever showing of abandonment the proof would support, and consequently, we must apply the usual rule that an appeal in chancery will be decided upon the record made in the trial court.

Affirmed.


author: Frank Holt, Justice.

text:
    Reba Marion Diehl HAIGHT and Rebecca Marion SUTTON v. STATE of Arkansas
    CR 75-180
    533 S.W. 2d 510
    Opinion delivered March 8, 1976

      Robert L. Pierce and Paul R. Bosson, for appellants.

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

Appellants were convicted by a jury of possession of a controlled substance, marijuana, with intent to deliver. [Ark. Stat. Ann. § 82-2617 (a) (1) (ii) (Supp. 1975)]. Appellant Haight received a five year sentence and appellant Sutton received a three year sentence in the Arkansas Department of Correction. Appellants first contend for reversal that the trial court erred in denying their motion to dismiss on the ground of double jeopardy. Amendment 5, United States Constitution and Article 2, § 8, Constitution of Arkansas (1874). Appellants’ first trial resulted in a mistrial, upon the state’s motion, because appellants’ counsel, in his opening statement, made reference to a plea bargain and the sentence which was recommended by the prosecuting attorney. Appellants argue that without consent by them, either express or implied, it was error to dismiss the jury absent overruling necessity. In Wilson v. State, 253 Ark. 10, 484 S.W. 2d 82 (1972), we said:

Plea bargaining is alien to jury trials and many reasons should be obvious why offers and counteroffers in plea bargaining have no place whatever in the evidence at jury trials.

There the remarks were made by the prosecution in the closing argument and we said that the trial court’s admonition to disregard the statement was not sufficient to remove whatever prejudice the statement may have caused. We hold that the remarks here, as to plea bargaining, are equally prejudicial when made by the defense counsel and the court properly granted a mistrial. Since the court correctly granted a mistrial, it follows that appellants’ constitutional rights as to double jeopardy were not violated. Walters v. State, 255 Ark. 904, 503 S.W. 2d 895 (1974), and Franklin and Reid v. State, 251 Ark. 223, 471 S.W. 2d 760 (1971).

Appellants next insist that the trial court erred by not permitting appellants to question jurors as to whether comments by the trial court in another case, a month previously as reported in the press, made it impossible for the jury to render a fair and impartial verdict in the case at bar. It is true that the trial court has discretionary authority in determining the extent of voir dire of the jurors. Ark. Stat. Ann. § 39-226 (Repl. 1962). However, this statutory authority does not foreclose or unduly limit counsel for the accused to probe the jurors fully with reference “to their mental attitude” in order to determine whether a juror is subject to a challenge for cause or a peremptory challenge. Griffin v. State, 239 Ark. 431, 389 S.W. 2d 900 (1965). In the case at bar, it appears that the jurors responded to the court’s and to appellants’ attorney’s inquiry that their decision would be based solely upon the law and the evidence adduced at the trial. Further, the jurors indicated, in response to the court’s inquiry, that they would not be influenced by anything they had seen or read in the news media “or anywhere else.” It does not appear that any member of this jury had served on the previous jury to which the court had directed his remarks. Consequently, we are of the view no prejudicial error was demonstrated. Furthermore, we consider that this issue is most unlikely to arise upon a retrial.

We next consider appellants’ contention that the court erred in allowing the state to elicit from a witness, a police informant, a conversation he had with the appellants about other drug transactions. The informant testified he had a conversation with appellants concerning a trip to a nearby town to get some “speed.” Evidence that these appellants were engaged in traffic of other controlled substances was relevant in the case at bar to the possession of marijuana with intent to deliver as it would tend to show intent or design. Kurck v. State, 242 Ark. 742, 415 S.W. 2d 61 (1967); Derrick v. State, 259 Ark. 316, 532 S.W. 2d 431 (1976).

We must agree with appellants’ contention for reversal that the trial court erred in refusing to allow the defense counsel to attack the credibility of the police informant by two proffered witnesses. It was made clear that if these witnesses were allowed to testify their testimony would be that the informant had previously stated to them that one of the appellants was not guilty. Reliance upon Swaim v. State, 257 Ark. 166, 514 S.W. 2d 706 (1974), by the trial court and the state that the proffered testimony is collateral is misplaced. There the arresting officer denied on cross-examination by appellants ’ counsel that he carried a gun, threatened or intimidated appellant. Appellant attempted to call two witnesses. One would testify that the officer had threatened him by using a gun. The other proffered witness would testify that the officer had offered to sell him drugs. We held that the trial court was correct in holding this constituted a collateral inquiry and not relevant to the issue. This is not so in the case at bar. Here in order to establish the guilt of the appellants, the state relied heavily upon its principal witness, the informant. Appellants’ proposed witnesses would contradict this evidence of guilt by the informant. They would testify that the informant had told them that one of the appellants was not guilty of the alleged offense. The vital issue in this case is, of course, the guilt or innocence of these appellants. Therefore, any contradictory statements bearing on this issue by the state’s witness were not collateral. They were most relevant to the subject. Certainly the jury should have the right to consider this testimony as bearing upon the credibility of a witness. We take this occasion to state that if the opinion in Swaim v. State, supra, is susceptible to the interpretation made by the trial court and the state, then it is here accordingly clarified.

We also agree with appellants’ contention that the trial court erred in denying their motion for mistrial when the court allowed the prosecuting attorney, on redirect, to ask the police informant to answer what had been the verdicts in other drug cases in which he had testified. The witness responded that other juries had found the defendants guilty. Appellants argue that the results of other jury trials were totally irrelevant and immaterial in this case. It is true that defense counsel had asked the informant on cross-examination how many times he had testified in similar cases to which he replied three or four times. However, we cannot agree with the appellee that the limited extent of the cross-examination by appellants’ counsel opened up the subject to the extent permitted or that it was an invited error and, therefore, nonprejudicial. Obviously, it could be effectively argued to the jury that other juries had accorded great credence to the testimony of this witness inasmuch as other juries had consistently believed him. Neither can we agree that a motion to strike nor a cautionary instruction would have sufficiently corrected this erroneous method of bolstering the credibility of a witness.

We do not agree with appellants’ next contention that the trial court erred in refusing to strike the testimony of the officer concerning a conversation he had overheard on the telephone and a radio transmitter. It is argued that his testimony was inadmissible as secondary evidence since the tape recording, which was made of the conversation, was not available. It appears that the police had “taped over” or “reused” the tape recording because “the quality of the tape is very poor” and “it was impossible to follow the conversation of the tape.” There was no objection to the officer’s testimony. Appellants’ counsel cross-examined the officer about the availability of the tape. Another witness testified and the trial recessed. It was not until then that appellants’ motion to strike the officer’s testimony was presented to the court. Suffice it to say that since there was no objection to the testimony and the motion to strike was not timely made, we cannot say the court abused its discretion. Warren v. State, 103 Ark. 165, 146 S.W. 477 (1912). Cf. Kerr & Pinnellv. State, 256 Ark. 738, 512 S.W. 2d 13 (1974); and Flaherty & Whipple v. State, 255 Ark. 187, 500 S.W. 2d 87 (1973).

We agree with appellants’ contention that the trial court committed error in restricting the scope of the appellants’ cross-examination of an officer witness about contacts between him and the appellants. The cross-examination would demonstrate the officer’s animosity toward them. The state insists that the inquiry was collateral and, having occurred two to three years preceding the trial, is too remote, citing Swain v. State, supra. Here we are of the view the evidence sought to be elicited on cross-examination was not too remote and had some probative value. Lang v. State, 258 Ark. 504, 527 S.W. 2d 900 (1975). The right of cross-examination is so important that we have often said the cross-examiner has wide latitude and cannot be unduly restricted in eliciting facts which affect the witness’ credibility. Henry & Aclin Ford v. Landreth, 254 Ark. 483, 494 S.W. 2d 114 (1973); and Washington National Ins. Co. v. Meeks, 249 Ark. 73, 458 S.W. 2d 135 (1970). Neither can we agree with the state that the asserted error was rendered harmless and nonprejudicial merely because here one of the appellants was permitted on redirect examination to testify about existing animosities that the state’s witness had toward her.

We deem it unnecessary to discuss the other asserted prejudicial error inasmuch as it is not likely to occur on a retrial. The judgments are reversed and the causes remanded for the errors indicated.

Reversed and remanded.


author: Elsijane T. Roy, Justice. John A. Fogleman, Justice,

text:
    Dwain MARTIN v. Charles E. HEFLEY
    75-276
    533 S.W. 2d 521
    Opinion delivered March 8, 1976

      Adams & Covington, for appellant.

      Thomas A. Martin Jr., for appellee.
   Elsijane T. Roy, Justice.

In 1975 the Deer School District of Newton County, Arkansas, held a regular election to choose a school board member. Appellant Dwain Martin and appellee Charles Hefley were candidates. The Newton County Election Commissioners certified appellee Hefley as the winner with a 243 vote total for him and 242 votes for Martin. Appellant Martin filed suit challenging the validity of certain votes for Hefley and questioning Hefley’s right to hold office. Appellee Hefley cross-complained contesting certain votes received by Martin.

At trial below the court ruled invalid two votes fQr appellee and one vote for appellant, leaving 241 legal votes for each party, and declared, pursuant to Arkansas statutes, a special election should be held to resolve the tie. From that decision comes this appeal. '

Appellant contends the court erred in counting the vote of Sandra Hefley Carter. Mrs. Carter’s vote was cast for appellee, and appellant argues that Mrs. Carter was not a resident of the Deer School District at the time of the election because she had married two months before the election. Appellant bases this argument on his contention that Mrs. Carter, upon marrying, immediately assumed the domicile of her husband who was not a resident of the Deer School District area.

Mrs. Carter’s testimony was that prior to marriage she had lived with her parents in the Deer School District and it was the only place she had ever registered to vote. She further testified that she and her husband had not established a home but that both lived with his parents part of the time and with her parents part of the time. Thus the rule that the wife assumes the domicile of her husband upon marriage finds no applicability in this instance. Bruce v. Bruce, 176 Ark. 442, 3 S.W. 2d 6 (1928). The action of the Carters indicates the absence of an intent to elect a permanent domicile, and intent to remain in a particular place coupled with actual residence has often been held to be the determinant of domicile. Ellis v. Southeast Construction Co., 260 F. 2d 280 (8th Cir. 1958); Troillet v. Troillet, 227 Ark. 624, 300 S.W. 2d 273 (1957); Phillips v. Sherrod Estate, 248 Ark. 605, 453 S.W. 2d 60 (1970). Consequently we find the trial court’s action correct on this issue.

Appellant Martin also submits as error the action of the court disallowing the vote of William Braden. Braden’s vote was cast for appellant and was deducted by the court from his total based on its conclusion that the statutory provision regulating absentee voting had not been strictly complied with. Earl Braden, the father of William Braden, testified that he secured his son’s ballot in order to forward it to him since young Braden was attending school at Arkansas Tech at the time the election was held. Earl Braden stated that he did not sign for the absentee ballot because the officials advised none were available. Two regular ballots (one for his daughter-in-law) were given him, and he was told that by the clerk’s marking “absentee” across the top they would be counted as legitimate ballots.

Ark. Stat. Ann. §§ 3-904 and 3-905 (Supp. 1973) are quite specific in delineating the procedure which must be followed in qualifying to register an absentee vote. § 3-904 begins:

Applications for absentee ballots may be made in one of the following three (3) ways, in no other manner, and then only on the form set out in this Act ] §§ 3-101 — 3-1306], (emphasis supplied)

The statute then provides that applications can be made in person, by mail or by delivery of the absentee form to the County Clerk by the elector, husband, wife, son, daughter, sister, brother, father or mother of the applicant. § 3-905 requires that applications for absentee ballots “. . . shall be made only on the form furnished by the County Clerk . . .” (emphasis supplied), and incorporates the format of the form to be so furnished. Amendment 51 of the Arkansas Constitution provides in § 13(d) that:

. . . [T]he Permanent Registrar shall determine that the signature on the application for absentee ballot is identical with the signature appearing on the voter’s Affidavit of Registration before mailing or passing out an absentee ballot. * * *

This court cannot view lightly specific constitutional as well as statutory requirements. Since no application form was provided no signature comparison could have been made by the permanent registrar. Thus there was no compliance with Constitutional Amendment 51, § 13(d).

In Bingamin v. City of Eureka Springs, 241 Ark. 477, 408 S.W. 2d 607 (1966), we stated:

Suits in election contests frequently show irregularities, and Amendment 51, adopted comparatively recently by the people, contains provisions aimed at correcting this situation. It is necessary that these provisions of the amendment, and the statutes referred to, relating to the duties of voters in applying for, and casting, absentee ballots, be strictly complied with.

Therefore, we find the trial court was not in error in holding William Braden’s vote invalid.

Appellant’s final contention is that the court erred in ruling that it was without jurisdiction to determine whether appellee was qualified to hold public office. Appellant bases this contention on the fact that appellee was convicted of burglary and given a two year suspended sentence, a crime he argues falls within the ambit of Article 5, § 9 of the Arkansas Constitution. § 9 states:

No person hereafter convicted of embezzlement of public money, bribery, forgery or other infamous crime shall be eligible to the General Assembly or capable of holding any office of trust or profit in this State.

The court found that the issue of whether Charles Hefley was legally competent to hold office should be determined quo warranto and could only be raised by the attorney general, prosecuting attorney or one entitled to the office. The court ruled that appellant was not entitled to the office and was therefore precluded from bringing an action to determine appellee’s eligibility.

Ark. Stat. Ann. § 34-2203 (Repl. 1962) outlines the method by which usurpation of office or franchise may be redressed. Relevant to appellant’s position is language therein requiring that proceedings instituted against a usurper be initiated by “the party entitled to the office or franchise.” Appellant can lay no claim to having received more votes than appellee, for even after the revised count conducted by the court each party received an equal number of votes. Therefore, appellant does not qualify as a person authorized to bring suit under the statute.

Furthermore, appellee received a suspended sentence. This type of sentence is insufficient to obviate his right to seek and hold the office. State Medical Board v. Rodgers, 190 Ark. 266, 79 S.W. 2d 83 (1935); May v. Edwards, 258 Ark. 871, 529 S.W. 2d 647 (1975). Consequently the trial court’s holding was correct on this point.

Appellee, by way of cross appeal, alleges error below in the court’s declaring Ray Proctor’s vote invalid because of non-residency. Proctor testifed that, at the time of the election, he was staying with his family at Mossville, Arkansas, which is in the Deer School District. He stated he was living there because he had been “laid-off” from his employment in Fayetteville, which is located in Washington County. He previously had been living in Elkins, also in Washington County, for two or three years prior to being “laid-off”. He owned a mobile home and paid taxes there. At the time of trial he had resumed employment in Washington County. From the evidence we cannot say that the trial court erred in declaring his vote invalid for failure to meet residency requirements. A fact question was presented as to his residence for voting purposes, and the court could justifiably conclude that he had relinquished voter status in the Deer School District area.

The validity of the vote of Ertle Hicks was questioned also as to residency. Hicks’ testimony discloses that he owns a home in Deer, receives his mail there and alternates two or three times a week staying in Jasper with his wife and in Deer on his farm. Here again is a factual determination for the court, and we find no error in its conclusion. Charisse v. Eldred, 252 Ark. 101, 477 S.W. 2d 480 (1972).

Since the record discloses substantial evidence to support the judgment of the trial court, it is affirmed.

Harris, C.J., and Fogleman, J., dissent.

John A. Fogleman, Justice,

dissenting. I concur in all of the majority opinion except that part relating to the vote of William Braden. My disagreement is based upon appellant’s argument, which is totally disregarded by the majority. In my opinion, it is valid, and I cannot understand why it does not dictate a different result. Appellant argues that a voter cannot be disfranchised solely by the reason of irregularities or improper action of election officials.

William Braden complied with the absentee voting requirements as fully as he could, given the situation resulting from the action or inaction of the county board of election commissioners and the county clerk. His vote was counted by the election officials. It was not shown or even alleged that he was not a registered voter. The circuit court held his ballot invalid, saying that William Braden failed to comply with provisions of the Arkansas statutes setting forth the method for making application and voting absentee. The testimony shows that Earl Braden, William Braden’s father, went to the county clerk’s office for the purpose of obtaining an absentee ballot for his son, a college student at “Arkansas Tech,” on three different occasions. The clerk told the senior Braden that he had no absentee ballot material, but finally marked an official ballot with the word “absentee” across the top and delivered it to the father, assuring him that this ballot would be legal in every respect.

There was a presumption that this vote, since it was accepted and counted by the election officials was valid, and the burden of overcoming this presumption was upon the contestant. Letchworth v. Flinn, 108 Ark. 301, 157 S.W. 402; Webb v. Bowden, 124 Ark. 244, 187 S.W. 461.

As appellee concedes, the evidence shows that no mechanism had been established for the casting of absentee ballots in this election. William Braden did not make an application for the ballot as required by Ark. Stat. Ann. § 3-904 (Supp. 1975). But that section of the statute clearly requires that the application be made only on the form set out in the act. That form is set out in Ark. Stat. Ann. § 3-905 (Supp. 1973). That section contains the following language:

Applications for absentee ballots shall be made only on the form furnished by the County Clerk and the County Clerk shall supply the following form on request beginning sixty (60) days before the election.

William Braden was prevented from making this application solely because the county clerk failed to provide the necessary application form as he was required by law to do. In casting his ballot William Braden used the ballot provided him by the clerk, because the election commissioners failed to provide absentee ballots as required by Ark. Stat. Ann. § 3-902 (Supp. 1973).

It is quite true that we said, appropriately enough, that there must be strict compliance with statutory provisions governing absentee voting in Bingham v. City of Eureka Springs, 241 Ark. 447, 408 S.W. 2d 607. But it was not a failure to perform by election officials which prevented compliance by the voter in Bingham. There should also be strict compliance by officers conducting the election. We did not, could not, and should not, in Bingham, or in this case, hold that failure of election officials to perform their mandatory duties can have the effect of disfranchising any voter.

It has long been the law that neglect, misconduct or mistakes of election officials should not disfranchise qualified electors. Appellee does not quarrel with this general rule, but says: “The rule that improper actions of election officials will not invalidate a voter’s ballot has no place in the area of absentee voting.” He cites no authority for this statement and the reason is understandable. As a matter of fact, the ■ authorities in Arkansas are to the contrary. In Orr v. Carpenter, 222 Ark. 716, 262 S.W. 2d 280, we had under consideration a challenge to absentee ballots in an election contest. In holding that they should be counted, we said:

The pertinent issue here is whether legal voters are to be denied their right of franchise because they used ballots upon which the candidates’ names had been placed by the use of a typewriter instead of some other form of printing and no objection to the form of the ballot is made until after the election. Even if it be conceded, without deciding, that the typing of the candidates’ names is not a substantial compliance with Ark. Stats. § 3-811 as amended by §§ 3-823 and 3-826, still the appellant may not object to the validity of the election on account of such irregularity where he did not avail himself of the opportunity to have it corrected before the election was held.
This court is committed to the rule that the mistake of an officer charged with responsibilities incident to an election will not have the effect of disfranchising the voter whose evidence of the right to participate in the election was irregular. In Henderson v. Gladish, 198 Ark. 217, 128 S.W. 2d 257, we reaffirmed the following principles announced in Jones v. State, 153 Ind. 440, 55 N.E. 229, 232: “To hold that all prescribed duties of election officers are mandatory, in the sense that their nonperformance shall vitiate the election, is to ingraft upon the law the very powers for mischief it was intended to prevent. If the mistake or inadvertence of the officer shall be fatal to the election, then his intentional wrong may so impress the ballot as to accomplish the defeat of a particular candidate or the disfranchisement of a party. And it is no answer to say that the offending officer may be punished by the criminal laws, for his punishment will not repair the injury done to those affected by his acts. ***

As pointed out in Henderson v. Gladish, 198 Ark. 217, 128 S.W. 2d 257, a voter should not be disfranchised by making him the innocent victim of either a careless, designing or uninformed officer. In that case, reference was made to our constitutional provision that “no power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage.” Art. 3 § 2, Constitution of Arkansas.

Since I woo'd hold the William Braden ballot valid, I would reverse the judgment and enter judgment here for the appellant.

I am authorized to state that the Chief Justice joins in this opinion.

      The vote of the daughter-in-law was disallowed by the election commission.


author: Carleton Harris, Chief Justice.

text:
    CITY OF BATESVILLE and Dr. Bob SMITH et al v. Preston W. Grace et al
    75-184
    534 S.W. 2d 224
    Opinion delivered March 15, 1976

      Pickens, Boyce, McLarty & Watson, by: James A. McLarty, for appellants.

      Highsmith, Tatum, Gregg & Hart, by: Samuel C. Highsmith, W. D. Murphy Jr., for appellees.
   Carleton Harris, Chief Justice.

This appeal relates to the rezoning of two tracts of iand located on Highway 167 in Batesville; the tracts are contiguous, one belonging to appellee Preston Grace (hereafter referred to as the “Ball tract”), and the other belonging to Grace and appellees Highsmith and Rogers (hereafter called the “Highsmith tract”). Appellants, the City of Batesville, and 23 homeowners living near the tracts (who intervened), contend that the chancellor erred in finding that the action of the City of Batesville in denying the C-1A classification to the subject tracts was arbitrary, capricious, and unreasonable.

The Ball tract, 381 ft. of frontage on Highway 167, was purchased by Grace in October of 1971 for the sum of $69,-000, the property being zoned residential at the time; likewise, the Highsmith tract was zoned residential.

The unusual nature of the court’s decree necessitates a step-by-step review of the events that occurred.

1. December 7, 1971: Appellees filed their petition for rezoning from R-l to C-1A with the Planning Commission.
2. March 7, 1972: The Planning Commission held hearings on two nights, at which both appellants and appellees were heard, and voted 4-3 to recommend to the City Council the rezoning of the property to C-'IA.
3. April 25, 1972: The City Council voted 4-3 to approve the rezoning. The mayor vetoed the measure.
4. May 29, 1972: The City Council met again, with the mayor reading aloud the reasons for his veto. A motion to override the veto failed to pass, 3-3 (one councilman abstaining).
5. June 21, 1972: Appellees appealed the decision of the City Council to Circuit Court.
6.October 20, 1972: Appellees moved to transfer the case to chancery, simultaneously amending their complaint to allege that the mayor’s veto was arbitrary and capricious. The cause was transferred to chancery on October 23, 1972, as two cases, Nos. 4975 (the Ball tract) and 4976 (the Highsmith tract). The amended complaints alleged three specific grounds for the charge of arbitrary and capricious action:
a. The mayor had refused to decide the application on the record before him.
b. The veto disregarded the findings of the Planning Commission and the vote of the Council.
c. The veto deprived the appellees of their property without due process of law.

After an extended trial, the chancellor entered a thirty-one page opinion containing the court’s findings, and at the same time an interlocutory order embracing the findings was entered and it was stated that the “summary of specific findings of the court and mandatory requirements for rezoning ... is hereby made the court’s interlocutory order regarding this case.” Further, “that a final order in this cause will be entered by the court pending the resolution of the procedures as laid down in this interlocutory order.” The chancellor commented that the greatest fear of the residents, whose properties lie west and southwest of the land sought to be rezoned, was an increased traffic flow resulting from commercial development, but he noted that this detriment would be nominal if traffic could only enter the tracts from the highway. During the trial, testimony was offered indicating that the Independence Savings and Loan Association’s new office building would be placed on the Ball tract. Plans were offered relative to the Savings and Loan office which the court termed “acceptable.” The following findings were then made:

“(2) That the Court further finds that since both tracts are located along Highway 167 where there is extremely heavy traffic, and in or near a growing and expanding commercial area that the said tracts, although they might be used for residential purposes, are not desirable for such use. That the said tracts are much more desirable for commercial use or purposes, and the highest and best use of the said property would definitely be for commercial purposes, and this is more particularly true of the Highsmith tract.
“(3) That the fear of increased traffic among the intervenors in the residential area which might come about from the rezoning of the tracts in question can or may be largely alleviated by a mandatory requirement that all major traffic come in from the east off the said Highway 167, or in other words the main and only entrance for traffic in general to any established business would be from Highway 167 and not from the section on the west side of the land to be rezoned where the homes of the intervenors are principally located.
“(4) That no presently existing or dedicated streets or roads not now open shall be opened up without approval of the City Council of Batesville, and upon recommendation of the City Planning Commission, and only after an opportunity had been afforded the intervenors to be heard on the matter.
“(5) That the Court finds that the said rezoning of both the Ball and Highsmith tracts from a R-l to C-1A as prayed for by the petitioners should be granted upon conditions hereinafter set out, and that the Mayor’s veto of the action of the City Council relative to the said proposed rezoning is arbitrary, discriminatory and unreasonable based on his objections set out in his veto message, and for the further reasons heretofore mentioned.
“(6) That arrangements must be made and plans set out specifically in writing that all major traffic must come off Highway 167, and that the petitioners must either execute a bill of assurance or such other covenants or agreement to meet the requirements of the City Planning Commission and the City Council in this respect so as to guarantee adequate protection to the intervenors against any possible excess traffic, and must provide buffer zones where necessary to residents nearest the new proposed business sites.”

Appellees were then directed to submit to the City Planning Commission and City Council a general outline of plans for the use and development of the property within six weeks; the Council was given two weeks to accept, reject, or modify such proposals, but the action of the Council would be subject to review by the court. The Council was ordered to report to the court within sixty days from the date of the order unless the court should extend the time. Further findings were then made:

“(9) The cost of this action is assessed against the plaintiffs or petitioners in this suit since they are the ones who brought it and are seeking the benefits therefrom, unless, however, this cause of action is strenuously resisted by the intervenors [residential property owners] herein, in which event the Court may then upon final hearing or entry of a final decree in this cause of action adjust the costs otherwise if he should deem such action equitable. Any attendance of the intervenors or their attorneys at meetings of the City Council to procure the rights given them under this decree will not be considered strenuous objections or resistance but only to protect the rights given them under this temporary order. However, further outright resistance to the proposed rezoning on a limited basis, as defined and set out by the Court herein, will be considered strenuous resistance.
“(10) In event of any unwillingness on the part of the petitioners herein to comply with the orders and findings of this Court as heretofore set out may be grounds for the denial of the plaintiff’s petition in toto upon final hearing or review of this cause of action.
“(11) Any requirement further made by the City of Batesville relative to the types of buildings and establishment of proposed businesses or opening or closing of streets in the affected zoning area, or other requirements needed to protect the intervenors must be reasonable, practicable, and based on sound business judgment of said city officials and not necessarily on prejudice or ill feelings.”

On July 22, 1974, the appellees presented to the Planning Commission their plan in compliance with the court order, details of which, under the view we take, are unnecessary to this opinion. It is significant, however, that the report announced that Independence Savings and Loan Association could not contract to build its new office on the Ball tract because of rising construction costs and changed economic conditions, and that a binding commitment from anyone to develop the tracts could not be obtained until the proposed rezoning became final. The report did offer to exclude ten specific types of businesses from the property. On September 19, the Commission voted 5 to 2 to recommend that the property remain residential, notwithstanding the chancellor’s statement to the Chairman of the Commission that he had already rezoned the property in the June 10 order. However, on the basis of the fact that the property was being rezoned, the Commission offered certain suggestions as proposed by the court as to restrictions and recommendations and this report, along with the minutes of the meeting, was sent to the City Council. The Council voted 5 to 3 to adopt the recommedation that the property remain residential rather than becoming commercial, but alternatively, approved the suggestions and restrictions recommended by the Planning Commission.

Thereafter, hese recommendations were filed with the court, in compliance with its order, and subsequently, the chancellor entered his “Supplementary Findings and Opinion,” in which he set out that the Commission and the Council had “voted to accept the Court’s plan for a rezoning of the land” and a decree was entered wherein part of the suggestions were accepted, part rejected, and additional restrictions were entered on the court’s own motion. The following provisions inter alia are found in the decree:

“That the Court finds that the following types of businesses ordinarily permitted under a C-l A classification should be and are by the orders of this Court specifically prohibited, namely:
(6) Dry cleaning and laundry establishments
(8) Automotive service stations
(9) Automotive repairs and sales, both new and used
(10) Warehousing — commercial
(11) Wholesaling
(15) Commercial recreation, such as bowling alleys, golf driving ranges, drive-in theaters, skating rinks, and such like
(16) Automotive laundries of any nature whatsoever (19) Drive-in restaurants, ice cream stands and such like
(23) Hospitals and nursing homes of any nature whatsoever, and funeral homes.
(24) Mobile home parks *'**
“The Court further reiterates the findings in paragraph 6, page 29 in his original findings that all major traffic must come in off Highway 167 or from the east, and that the petitioners must provide adequate protection to the intervenors or their property against excess traffic coming on to the newly zoned (BallHighsmith) property, particularly where necessary to protect the residents nearest any proposed business sites, and to provide necessary buffer zones where absolutely needed.
“That the petitioners should and must provide a fence approximately five (5) feet in height extending along and near the west boundary line, at least 6 inches over on the petitioners’ lands and immediately east of the intervenors ’ land, to be built and maintained at the expense of the petitioners or their successors in title. [Here follows a description of the location of the fence.]
“That no buildings or constructions on the property to be rezoned shall exceed two (2) stories in height.
“It is the thinking of the Court that neither the petitioning landowners or their employees or agents should be prohibited from coming in on any of their own lands from any direction so long as they do not intrude, impose, or trespass on adjacent land owners or lands of the intervenors herein. But this Court thinks and finds that such private entrances should be from the south, west, or north sides of the lands rezoned and so arranged that the general public might be excluded from any ingress or egress at such private entrances. This arrangement might be affected by means of gates, or chains between posts that might be taken down at times, or other practical means of ingress and egress to the said property.”

It is apparent from the portions of the decree(s) set out herein that this is a classic example of judicial rezoning, and thus cannot stand. Let it be remembered that this is not an ordinary equity case, but rather involves only the chancellor’s function in determining whether the City’s action in granting, or denying, rezoning was or was not arbitrary, capricious, and unreasonable. In City of Little Rock v. Parker, 241 Ark. 381, 407 S.W. 2d 921, this court said:

“The right and responsibility for classifying the various areas in the city are with the zoning authorities, and their decision will only be disturbed if it is shown that they acted arbitrarily. [Citation omitted.]
“The sole question before this court on appeal is, ‘Did the preponderance of the evidence before the Chancellor show that the city acted arbitrarily in refusing to rezone the properties here at issue. . .?’ While the word ‘arbitrary,’ has several definitions, probably the most generally accepted one is, ‘arising from unrestrained exercise of the will, caprice, or personal preference; based on random or convenient selection or choice, rather than on reason or nature.’ (Webster’s Third New International Dictionary, 1961).”

Likewise, in Tate v. City of Malvern, 246 Ark. 318, 438 S.W. 2d 52, we stated:

“We recently had occasion to recount some fundamental rules of law applicable generally to zoning cases. [Citation omitted.] The burden is on the landowner to preponderantly show, at the trial level, that the action of the city was arbitrary; on appeal we determine whether the trial court’s finding was contrary to a preponderance of the evidence; home owners who have relied on residential zoning are entitled to consideration and the use of a particular tract may be reasonably restrained so as not to cause them injury; and rezoning cannot be justified solely on the ground that it is necessary to put a particular tract to its most remunerative use.”

This court has ruled that judicial intrusion upon this legislative prerogative violates the constitutional requirement of separation of powers. Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W. 2d 74. In Wenderoth, the court held unconstitutional a statute that purported to give landowners the right of de novo trial in circuit court, as a mode of appeal from municipal building and zoning decisions. The court’s holding in Wenderoth is relevant to this appeal:

“Therefore, when a city exercises the power conferred upon it by our state legislature, the city is acting in a legislative capacity which is co-equal with the power of the legislature itself. Little Rock Ry. & Elec. Co. v. Dowell, 101 Ark. 223, 142 S.W. 165 (1911). There we said that when a municipality exercised the delegation of this legislative authority, the courts cannot take away the discretion vested in the city’s legislative body. ***
“. . . By this method of appellate review de novo there is attempted to impose upon the circuit court a function of a non-judicial character in a matter that is exclusively within the discretion and legitimate power of the city’s legislative body. The result would be to substitute the judgment of the circuit court for that of a municipal law-making body. This is contrary to Article 4 of our constitution which prohibits intrusion by the judiciary upon the legislative domain. ***
“However, zoning regulations and ordinances are not immune to appellate review. Our chancery courts have the power to grant relief in appropriate proceedings when a zoning ordinance is arbitrary, capricious, or unreasonable. [Citations omitted.] On this restricted basis our chancery courts have reviewed the validity of zoning ordinances. In other words, the enactment of zoning ordinances is a legislative function subject only to appellate review to determine whether the city’s legislative body acted arbitrarily, capriciously, or unreasonably in the enactment of the ordinance. ”

Thus, a dissatisfied landowner is not entitled to a de novo review in chancery of the city zoning action. Wenderoth v. Freeze, Mayor, 248 Ark. 469, 452 S.W. 2d 328.

In the instant case the chancellor committed two errors in his review of the city zoning decision. First, his opinion on June 10 clearly shows that he focused on the question of the arbitrariness of the mayor’s veto, instead of the action by the city —- the refusal to override the veto.

Second, as previously stated, the trial court exceeded the permissible bounds of judicial review of a zoning decision. The decrees entered in this case amply evidence that the chancellor tried the zoning question de novo and substituted his decision for that of the City Council, even to the extent of specifically modifying the city zoning ordinance by placing building restrictions on the tracts in question, along with the type of fencing, etc. No decision of this court has ever sanctioned any procedure whereby the trial court originates and imposes such specific restrictions in a rezoning case, though the court has upheld rezoning in cases when the developer had committed himself to restrictions for a definite project for the use of the land. Metropolitan Trust Co. v. North Little Rock, 252 Ark. 1140, 482 S.W. 2d 613; Little Rock v. Hocott, 220 Ark. 421, 247 S.W. 2d 1012. In the instant case, however, the impetus for the restrictions came from the trial court itself —- in its June 10 opinion and several of the restrictions finally imposed in the decree of November 4, 1974, apparently originated with the court.

Of course, the very fact that the chancellor found it necessary to place numerous limitations upon the rezoning, is probably the best evidence that the Council did not act arbitrarily.

In accordance with what has been said, it appearing that the action of the Council in refusing to rezone the property to C-1A was not arbitrary, capricious or unreasonable, the decree should be, and hereby is, reversed.

It is so ordered.

Byrd, J., not participating.

      Grace is a stockholder of the Savings and Loan company and Guy Mosely, Chairman of the Board of the company, likewise testified relative to the plans for the new office. There was never any specific proposal offered relative to the use that would be made of the Highsmith tract.

      The proposed construction of this building appears to have carried considerable weight with the court.

      Both cases were included in the same decree.


author: John A. Fogleman, Justice.

text:
    Robert SIMMONS et ux v. ARKANSAS STATE HIGHWAY COMMISSION
    75-310
    534 S.W. 2d 16
    Opinion delivered March 15, 1976

      Kenneth C. Coffelt, for appellants.

      Thomas B. Keys, George O. Green, for appellee.
   John A. Fogleman, Justice.

The sole point for reversal raised by appellants in this, the third appeal in the case, is the failure of the court to instruct the jury, upon appellants’ timely request, that it could not return a verdict based upon speculation and conjecture. We find no merit in this point and affirm.

The case is one in eminent domain. The question of just compensation actually turned upon the jury’s consideration of expert testimony. Appellants’ expert witness testified that appellants’ property remaining after the taking of 1.23 acres was still residential in character and that any prospect for future development was pure speculation. Appellee’s expert testified that the highest and best use of appellants’ residual land, after the taking, was for commercial and industrial purposes, because of its proximity to an interchange on a heavily travelled highway. He found the situation comparable to property at other interchanges around which there had been commercial development, and expressed the opinion that benefits accruing to appellant by reason of enhancement of the market value of their land due to the taking and ultimate construction of the highway according to plan far exceeded any damages which might have otherwise have been recoverable. He admitted on cross-examination that there had been no industrial development on any tract which he found comparable to appellants’ property for the purpose of arriving at his opinion as to market value. This witness denied that the change in highest and best use was speculative. He explained that sales of property adjoining appellants’ property by typical buyers would be indicative of normal trends and not speculative because the owners of the corporation making the purchases were astute, knowledgeable and informed and well-financed businessmen whose judgment he accepted. He admitted that he did run into speculation every now and then where purchasers were misled and uninformed.

Of course, just compensation in an eminent domain case is not to be arrived at by speculation and conjecture. Evaluation of the opinion of appellee’s expert witness was for the jury. It was properly instructed that fair market value was the highest price the land would bring in a transaction between parties with knowledge of all the uses and purposes to which the property was adapted; that the burden was upon appellee to prove enhancement of value by the greater weight of the evidence, which was that evidence which had more convincing force and was more probably true and accurate; that it was to decide whether opinion evidence was correct or erroneous and, in doing so, was to consider its reasonableness or unreasonableness; and that it should not consider the opinion of an expert if it was not reasonable.

We have held that, in a particular factual situation, it was not error to instruct a jury that it could not base its verdict upon speculation and conjecture. Benefit Ass’n. of Ry. Employees v. Jacklin, 173 Ark. 937, 294 S.W. 353. But this does not mean that it is error to refuse such an instruction. It is a cautionary instruction. The giving or refusal of instructions of this nature lies within the sound judicial discretion of the trial judge and reversible error is not committed unless the circumstances are such as to indicate an abuse of that discretion. See St. Louis I.M. & S. Ry. Co. v. Lyman, 57 Ark. 512, 22 S.W. 170; Smith v. Alexander, 245 Ark. 567, 433 S.W. 2d 157; 5A CJS 1281, Appeal & Error, § 1775, P. 1282; 88 CJS 846, Trial § 320.

Where there is substantial evidence to support a jury verdict and instructions given fully and fairly cover the law and the factual situation in the case, the refusal of the instruction requested by appellants is not an abuse of discretion. Kantor v. Ash, 215 Md. 285, 137 A. 2d 661, 69 ALR 2d 585 (1958); Midland Valley R. Co. v. Bradley, 37 F. 2d 666 (10 Cir., 1930). There was substantial evidence on behalf of appellee, if. Larrison’s opinion was accepted and his explanation of the sales be considered comparable was found reasonable by the jury. The instructions fully and fairly covered the issues and provided a proper test for weighing expert opinions.

We find no abuse of the trial court’s discretion, so the judgment is affirmed.

      See Arkansas State Highway Commission v. Simmons, 254 Ark. 144, 492 S.W. 2d 238; Simmons v. Arkansas State Highway Commission, No. 74-153, Nov. 4, 1974.