text:
    Theodore JONES et al v. W. C. REED et al
    79-168
    590 S.W. 2d 6
    Opinion delivered December 3, 1979
    (In Banc)

      Appellant, pro se.

      Robert R. Cortinez and John W. Bailey, for appellees.
   John A. Fogleman, Justice.

This an appeal from the judgment of the circuit court affirming the decision of the Alcohol Beverage Control Board (hereafter called Board) transferring a private club mixed drink permit held by VFW Post 9095 from one address or location to another in Little Rock. Since appellants have not demonstrated error in the circuit court proceedings and judgment, we must affirm.

The proceeding was commenced by the filing of an “Affidavit of Transfer” by “W. C. Reed, VFW Post 9095” on May 18, 1978. It was actually an application for the transfer of “Retail Liquor Permit No. 233” from 7300 West 12th Street in Little Rock to 1211 Gamble Road in the same city. It was alleged in that application that the premises to which the transfer was sought were owned by VFW Post 9095. On June 28, 1978, appellants and others alleged to be 294 in total number, filed a petition with the Board opposing the transfer. On July 11, 1978, a hearing was held before a hearing officer on the transfer application. The report of the hearing states that it was held on the applications of VFW Post 9095 and W. C. Reed, its managing agent, for a transfer of location of “On Premise Consumption, Private Club, Permit #233 and Retail Beer Permit #3990.” On July 18, 1978, Karen Jones, Director of Alcoholic Beverage Control Division, denied the application for transfer. That decision was appealed to the Board. At a hearing held by the Board on October 18, 1978, the decision of the Director was reversed and the transfer granted.

On November 14, 1978, Theodore Jones, J. L. Herring and Gerold Grigsby, appellants here, filed a petition for judicial review in the circuit court. The circuit court’s judgment affirming the Board’s decision was entered January 29, 1979. Appellants list eight points for reversal. They are:

I
THE COURT ERRED IN FINDING THAT A FULL AND COMPREHENSIVE HEARING WAS CONDUCTED BY THE ALCOHOLIC BEVERAGE CONTROL AS EVIDENCED BY THE TRANSCRIPT AND EXHIBITS FILED HEREIN.
II
THE COURT ERRED IN CONCLUDING THAT SUCH MATTERS PERTAINING TO PRIVATE CLUBS ARE PROVIDED FOR ONLY IN ACT 132 OF 1969.
Ill
THE CIRCUIT COURT ERRED WHEN IT CONCLUDED AS A MATTER OF LAW TO WIT: “2. ACT 189 OF 1973 (48-311 ARK. STATS. ANN.) SPECIFICALLY STATES THAT IT AMENDS “SECTION 7 OF ARTICLE 3 OF ACT 108 OF 1935, AS AMENDED,” WHICH IS THE THORNE LIQUOR ACT, AND THE COURT HELD IN HINTON V. STATE (242 ARK. 341) “THAT THE THORNE LIQUOR ACT, ACT 108 OF 1935, AS AMENDED DOES NOT COVER ISSUANCE OF PRIVATE CLUB PERMITS.” THEREFORE, 48-311 ARK. STATS. ANN. DOES NOT APPLY.
IV
THE COURT ERRED WHEN IT CONCLUDED AS A MATTER OF LAW, TO WIT: 3. “THAT ACT 132 OF 1969 DOES NOT SET OUT ANY METHOD OF APPEAL FROM ISSUANCE OF A PERMIT BY ALCOHOLIC BEVERAGE CONTROL FOR LICENSES TO PRIVATE CLUBS; THEREFORE, APPEALS MUST BE TAKEN UNDER ARK. STATS. ANN. 5-701 ETSEQ WHICH IS THE ADMINISTRATIVE PROCEDURE ACT.”
V
THE COURT ERRED IN DEPRIVING APPELLANTS TRIAL DE NOVO BY JURY AND JUSTIFYING ITS JUDICIAL REVIEW BY CITING IN ITS ORDER: “4. IN 5-713 ARK. STATS. ANN. SUBPARAGRAPH (g) IT IS PROVIDED “THE REVIEW SHALL BE CONDUCTED BY THE COURT WITHOUT A JURY AND SHALL BE CONFINED TO THE RECORD, EXCEPT THAT IN CASES OF ALLEGED IRREGULARITIES IN PROCEDURE BEFORE THE AGENCY, NOT SHOWN IN THE RECORD, TESTIMONY MAY BE TAKEN BEFORE THE COURT.”
VI
THE COURT ERRED IN SUSTAINING AND AFFIRMING THE ALCOHOLIC BEVERAGE CONTROL “BOARD DECISION” GRANTING APPELLEE W. C. REED PRIVATE CLUB PERMIT NO. 233, RETAIL BEER PERMIT NO. 3990 AND TRANSFER OF LOCATION.
VII
THE COURT ERRED IN AFFIRMING THE ALCOHOLIC BEVERAGE CONTROL BOARD’S DECISION PERMITTING PRIVATE CLUBS ON PREMISES DISPENSING AND CONSUMPTION OF ALCOHOLIC BEVERAGE WITHIN 200 YARDS OF A CHURCH.
VIII
THE COURT ERRED IN AFFIRMING THE DECISION OF THE A.B.C. BOARD IN THAT THE “BOARD DECISION” FAILED TO MAKE EXPLICIT AND CONCISE FINDINGS OF FACTS AND CONCLUSIONS OF LAW SEPARATELY STATED AS MANDATED IN 5-710 ARK. STATS. ANN.

I

Appellants contend that their witnesses were not heard by the Board. They cite Ark. Stat. Ann. § 5-708 (c) (Repl. 1976), which provides that in every case of adjudication by an agency subject to the provisions of the Arkansas Administrative Procedure Act (as the Board is, see Byrd v. Jones, 263 Ark. 406, 565 S.W. 2d 131) opportunity shall be afforded all parties to present evidence and argument on all issues involved. Appellants complain that the Board failed to comply with this provision by refusing to hear five or six witnesses they planned to call at the hearing before the Board, and by denying their offer of witnesses to prove variances from the truth in the Alcoholic Beverage Control Report submitted on June 7, 1978, by A. D. Evans, an agent of the Board.

Appellant Theodore Jones was spokesman for those objecting to the transfer. The chairman of the Board asked him how many witnesses he planned to call. When Jones responded “five or six,” the chairman asked Jones if he knew what the witnesses would testify and the general nature of their testimony. The following exchange between the chairman and Jones ensued:

T. Jones: “I propose to show that a number of the people actually attend this church regularly. Have regularly attended this church in the past on a regular basis, that’s one of the things. Would you stipulate to that?”
Ratton: “I think we would so stipulate. How many of these people have attended this church regularly on a weekly basis?”
Bailey: “That’d be five.”
Ratton: “All right sir. We will so stipulate that there’s five people who regularly, conscientiously attend that church for the services.”

Jones later stated, “We have five, acting, participating members in our church” and that he was the operator of a junkyard on the premises where the church was located.

One of the grounds of objection by apellants was that the proposed “liquor outlet” was too close to a church. Since the Board accepted Jones’ statement as to the testimony of these witnesses, appellants were not prejudiced by this action of the Board, which is admonished to exclude unduly repetitious evidence. See Ark. Stat. Ann. § 5-709 (d) (Repl. 1976). Appellants’ spokesman did not state anything that these witnesses would testify other than the matters set out above.

Appellants contend that on another occasion, they were denied the opportunity to present witnesses to prove variances from the truth in the Alcoholic Beverage Control Report. We cannot consider this argument because the abstract of the record does not reveal what witnesses were to be called, what “variances from the truth” there were in the report, or any statement pertaining to the testimony these witnesses might have given. Actually the abstract does not show anything pertaining to a denial of the right of appellants to present evidence, other than that pertaining to the church. We can only rely upon the abstract of the record, as it constitutes the record on appeal. Corning Bank v. Bank of Rector, 265 Ark. 68, 576 S.W. 2d 949.

Appellants have failed to sustain this point or to demonstrate any violation of the equal protection and due process requirements of the Fourteenth Amendment to the United States Constitution which they assert in their argument on this point. We also note that the abstract of appellants’ petition for review of the Board’s action did not raise any issues as to violations of the United States Constitution.

II

Appellants’ argument on this point is totally devoid of any foundation. Act 132 of 1969 [Ark. Stat. Ann. §§ 48-1401 — 48-1418 (Repl. 1977)] is a comprehensive act covering the subject of sale of alcoholic beverages for “on premises consumption.” It includes a section (§ 10) governing private club permits. See Ark. Stat. Ann. § 48-1410 (Repl. 1978). Appellants read the preamble and §§ 1 and 12 of the act to require the application of Ark. Stat. Ann. § 48-311 (Repl. 1977) to private club permits. That part of the preamble quoted by appellants reads:

AN ACT to Reaffirm and Strengthen the State’s Policy of Strict Enforcement of the Liquor Laws of This State; ***** to Provide for the Licensing of Private Clubs in Which Alcoholic Beverages May Levy Taxes on Alcoholic Beverages Sold for On-Premises Consumption; to Authorize Cities and Counties to Levy Taxes and Fees Thereon; and for other Purposes.

The portions of § 1 relied upon by them are:

The General Assembly hereby reaffirms the policy of this State of strict enforcement of alcoholic beverage control laws ***** The General Assembly hereby authorizes and directs all law enforcement officials to enforce strictly the alcoholic beverage laws of this State.

Section 12 of the act reads:

“The Board is authorized to adopt and enforce reasonable rules and regulations governing the qualifications for permits hereunder, the operation of licensed premises, and otherwise implementing and effectuating the provisions and purposes of this Act, and, in doing so, shall be guided, insofar as pertinent, by rules and regulations now or hereafter applicable to retail liquor outlets. Nothing in this Act, however, shall be construed as limiting the power of other proper State or Local Governmental Bodies to regulate the operation of establishments under this Act as may be necessary for the protection of public health, welfare, safety, and morals.” (Emphasis as supplied by appellants.)

A policy declaration that liquor laws should be strictly enforced certainly is not a legislative declaration requiring the application of all existing statutes governing intoxicating liquor permits to the “on-premises consumption” type of permit. The direction by the General Assembly that the Board, in adopting rules and regulations governing qualifications for permits and otherwise implementing and effectuating the purposes of the acts, be guided by rules and regulations applicable to retail liquor licenses, “insofar as pertinent” does not require such application.^ Although the words “rules and regulations” might include statutes, depending upon the context in which they are used, in the usual connotation, these words do not. Ordinarily, these words are taken to mean rules and regulations adopted by administrative boards and agencies such as the Board. In the context in which these words were used in Act 132, they mean just that — the rules and regulations of the Alcoholic Beverage Control Board. Furthermore, the rules and regulations governing retail liquor outlets were, by express language of § 12, to serve only as guidance to the Board and then only “insofar as pertinent.”

We do. not understand appellants’ argument that § 13 of Act 132 bears on this point. It is quite true that this section does, as appellants point out, give the Director the power to suspend, cancel or revoke a permit granted under the act for violation of the act or any rule, regulation or order of the Board. It does not, as appellants’ excised quotation of the section would indicate, authorize any law enforcement agency having jurisdiction over the permitted premises to do so. Such an agency, under this section, may only make a complaint to the Director. The section also, by its specific language, requires that a permittee under the act be given an opportunity to appear and defend as provided by Ark. Stat. Ann. § 48-1312 (Repl. 1977) prior to suspension, cancellation or revocation of his permit, and to appeal under the provisions of Ark. Stat. Ann. §§ 48-1314, -1316 (Repl. 1977) from an order of the Director suspending, cancelling or revoking his permit. These provisions making specific reference to specific statutes, or sections thereof, actually run counter to, rather than support, appellants’ argument on this point.

Ark. Stat. Ann. § 48-311 (D) was brought into the statutory scheme by § 1 of Act 189 of 1973, which amended § 7 of Art. Ill of Act 108 of 1935, commonly referred to as the Thorne Liquor Law. That article dealt with the permits authorized under the Thorne Liquor Law, Subsection (A) of said § 7, which is also subsection (A) of Ark. Stat. Ann. § 48-311 refers to permits ‘ ‘under this act.” “ This Act’’ was Act 108 of 1935, which is compiled as Ark. Stat. Ann. §§ 48-101,-48-122,-48-201,-48-206,-48-301,-48-305,-48-309, -48-311, -48-326, -48-807, -48-822, -48-908, -48-937, -48-944 (Repl. 1977). See Compiler’s notes Ark. Stat. Ann. §§ 48-311 and 48-301. It appears that § 48-311 (E) would apply to permits under those sections only. Act 132 of 1969 is not, in any sense of the word, an amendment of Act 108 of 1935. Instead, it is a comprehensive act dealing only with the sale or dispensing of alcoholic beverages for “on-premises consumption.” We find no error in the trial court’s holding that Ark. Stat. Ann. § 48-311 (E) does not apply.

Ill

Appellants’ argument here is, in part, repetitive of their argument under Point II. In addition, however, they say that the circuit court reached its conclusion that Ark. Stat. Ann. § 48-311 did not apply to private club permits upon a misquotation of language in our opinion in Hinton v. State, 246 Ark. 341, 438 S.W. 2d 57. We actually do not see that our decision in Hinton, rendered prior to the enactment of Act 132 of 1969, has any real bearing on the questions at issue.

IV

Appellants are in error in relying upon § 13 of Act 132 of 1969 in arguing this point. Section 13 applies only to appeals from an order of the Director suspending, cancelling or revoking a permit issued under Act 132. It has nothing to do with appeals from orders of the Board granting a transfer of the location of an outstanding permit. In granting the transfer, there was certainly an adjudication by an agency subject to the Arkansas Administrative Procedure Act. It appears from the format of appellants’ Petition and Appeal filed in the circuit court that they did petition for judicial review pursuant to Ark. Stat. Ann. § 5-713 (Supp. 1979), which would govern in this case. In any event, appellants have not shown that the holding of the trial court deprived them of any right they would have had under Ark. Stat. Ann. §§ 48-1312, -1314, and -1316 (Repl. 1977). It appears to us that the review by both the Board and the circuit court was in substantial compliance with these statutes, as well as with the provisions of the Administrative Procedure Act.

V

Appellants argue, however, that, even if the Administrative Procedure Act applies, they were entitled to a jury trial under Ark. Stat. Ann. § 48-311 (E) (Repl. 1977) and Art. 2 § 7 of the Arkansas Constitution as amended by Amendment 6, and by the United States Constitution’s guarantees of trial by jury, due process of law and equal protection of the law. In relying upon Ark. Stat. Ann. § 48-311, appellants point out that§ 5-713 (A) provides that the Administrative Procedure Act does not limit other means of review provided by law.

The statutory language in § 48-311 relied upon by appellants is:

*** Any appeal from an order of the Director or Commission shall be made to the circuit court of the county in which the premises are situated, and said appeal shall be tried de novo.

Assuming, but not deciding, that this statutory provision did apply, “trial de novo” certainly does not require a jury trial. For example, on appeals from chancery courts, there is a trial de novo on appellate review, but certainly no right to jury trial. Trial de novo, as used in this statute, simply means that the whole matter is opened up for consideration by the circuit court as if the proceeding had been originally brought in that court. See Civil Service Commission v. Matlock, 206 Ark. 1145, 178 S.W. 2d 662. Appellants’ contentions as to a constitutional right to jury trial were completely answered in Civil Service Commission v. Matlock, 205 Ark. 286, 168 S.W. 2d 424. There we held that it was error for the circuit court to submit an appeal from the action of a civil service commission to a jury. There we said:

*** The constitutional guarantee of a jury trial extends only to common law actions, and, of course, the proceeding authorized by the act of the legislature under consideration here is not a common law proceeding, and neither party to such a proceeding was entitled to a jury. “The right of trial by jury shall *** extend to all cases at law.” Article II, Section 7, constitution of Arkansas. In construing this provision of the constitution this court, in the case of Drew County Timber Company v. Board of Equalization, 124 Ark. 569, 187 S.W. 542, said that the right of trial by jury “is confined to cases which at common law were so triable before the adoption of the Constitution’’. State v. Johnson, 26 Ark. 281; Wheat v. Smith, 50 Ark. 266, 7 S.W. 161; Wise v. Martin, 36 Ark. 305; Missouri Pacific Railroad Company v. Conway County Bridge District, 134 Ark. 292, 204 S.W. 630.

The constitutional right to trial by jury does not secure the right in all possible instances, but only in those cases in which it existed when our constitution was framed; it extends only to the trial of issues of fact in civil and criminal causes and has no relation to cases such as this. McKinley v. R. L. Payne & Son Lumber Co., 200 Ark. 1114, 143 S.W. 2d 38.

As pointed out in Matlock and elsewhere, the so-called statutory “appeal” from administrative agency action is only an adaptation, or perhaps extension, of judicial review of such proceedings which has always been available by certiorari, quo warranto, or other such writs. It has been made quite clear, by our own decisions that the proceedings of a state administrative board or tribunal are subject to review on certiorari or other extraordinary writ in the circuit court, a court of general original jurisdiction, when the board acts in a quasi-judicial capacity, even in the absence of a statutory authorization. Hall v. Bledsoe, 126 Ark. 125, 189 S.W. 1041; Howell v. Todhunter, 181 Ark. 250, 25 S.W. 2d 21; Pine Bluff Water & Light Co. v. City of Pine Bluff, 62 Ark. 196, 35 S.W. 227; State v. Railroad Commission, 109 Ark. 100, 158 S.W. 1076. See Parker, Administrative Law in Arkansas, 4 Ark. L. Rev. 107, 120; Davis, Mandamus to Review Administrative Action in Arkansas, 11 Ark. L. Rev. 351, 352; Certiorari in Arkansas, 17 Ark. L. Rev. 163, 169, 172.

Amendment Seven of the United States Constitution preserves the right to jury trial which existed at common law when that amendment was adopted, but has no application to a statutory proceeding which is not in the nature of a suit at common law. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893 (1936). This proceeding is, of course, a statutory proceeding which is not in the nature of a suit at common law. The Seventh Amendment is generally inapplicable in administrative procedures, where jury trial would be incompatible with the whole concept of administrative adjudication. See Pernell v. Southall Realty, 416 U.S. 363, 94 S. Ct. 1723, 40 L. Ed. 2d 198 (1974) and cases there cited. The United States Supreme Court has generally taken the position that Amendment Seven, even after the adoption of the Fourteenth Amendment, does not apply in civil actions in state courts. See Annot., 18 L. Ed. 2d 1388, 1410.

VI

This argument is based partially upon the assumption that appellants are correct in their assertions under points II, III and IV. Appellants, however, seek to apply regulations of the Board pertaining to applications for a permit. This was not an application for a permit. It was only an application for a transfer of the location. The regulations relied upon by appellants do not apply to a change of location, which is covered by § 1.26 of the Regulations of the State of Arkansas Department of Finance and Administration, Division of Alcoholic Beverage Control, Revised October 9,1974. Even though the document which appears in the record is entitled ‘ ‘ Affidavit of Transfer,” it also constitutes an application to transfer Retail Liquor Permit No. 233. Appellants say, however, that there was no application for change in location of either a private club permit or a beer permit, but that the Board’s order permits both.

It is clear, however, that appellants made their objection to a private club permit for dispensing any kind of alcoholic beverages at the new location. It is also clear that the agency hearings were held on the proposed change of location of both the private club and beer permit. Appellants appeared at, and participated in, those hearings. We find no objection to the hearings on the change of location because of deficiencies in the application. We find nothing in appellants’ petition in the circuit court raising any question about the validity or sufficiency of the application. This issue is raised for the first time on appeal. We do not consider such questions, but we point out that it is clear that appellants were not misled and that the hearings covered both the private club permit and the beer permit.

VII

Appellants contend that the oral testimony at the Director’s hearing was not included in the transcript and that it would disclose that Gibralter Heights Church of God was located across the street from the proposed new location, and regularly holding church services worshipping God there. Actually, it appears to us that the hearing before the Board is a hearing de novo and that the evidence before the Director is not automatically before the Board. In any event, if there is any deficiency in the record before us, it was the responsibility of appellants to take steps for correction of these deficiencies. Arkansas Farmers Association v. Towns, 232 Ark. 997, 342 S.W. 2d 83; Arkansas State Highway Com’n. v. Stupenti, 222 Ark. 9, 257 S.W. 2d 37.

Appellants claim that the Board stipulated that a church existed across the street and that the transfer was unlawful because of the provisions of Ark. Stat. Ann. § 48-312 and § 1 of Act 699 of 1975 [Ark. Stat. Ann. § 48-345 (Repl. 1977)] prohibiting any new permit within 200 yards of any church.

Ark. Stat. Ann. § 48-312 was § 8 of Art. Ill of Act 108 of 1935. It provides that a permit issued pursuant to that section shall not be transferrable to any premises other than those for which it was issued. Assuming but not deciding that this section applies to a private club permit, we have held that it limits only the action of the permittee, not the action of the Board. Smith v. Estes, 259 Ark. 337, 533 S.W. 2d 190.

Section 1 of Act 699 of 1975 does not apply here. It prohibits the issuance of a new permit to engage in the retail liquor business at a location situated within 200 yards of a church. A retail liquor business is that which is contemplated by Ark. Stat. Ann. § 48-309 (Repl. 1977). Under such a permit, one may dispense vineous or spiritous liquors for beverage purposes at retail, but such sales must be in unbroken packages, which may not be opened or any part of its content consumed on the premises where purchased. On the other hand, a private club permit is for dispensation of alcoholic beverages by the drink or in broken or unsealed containers for consumption on the premises. Ark. Stat. Ann. §§ 48-1402 (f), -1410 (a) (Repl. 1977). Furthermore, the definition of “private club” in Ark. Stat. Ann. § 48-1402 (j) is not consistent with the word “business.” A private club permit-tee simply is not engaged in the retail liquor business in the context of Ark. Stat. Ann. § 48-345.

VIII

Appellants state that the Board did not comply with Ark. Stat. Ann. § 5-710 (b) as to findings of fact and conclusions of law, in the following particulars:

1. The Board stipulated to a church located across the street from the permitted premises but in its decision stated “there purports to be a church” and “from the grounds on which the purported place of worship.”
2. There is not a single law citation or conclusion of law stated.

Appellants made no complaint about this deficiency in their petition in the circuit court. Appellants did not choose to abstract the Board’s decision in their original brief. They attempted to supply the deficiency in their reply brief. This is not permissible. Merritt v. Merritt, 263 Ark. 432, 565 S.W. 2d 603.

By their action, appellants have waived their present contention. Although this court may raise the question on its own motion, we are not required to search the record in order to do so. We would add that, although the “decision” set out in appellants’ reply brief falls far short of being a model of compliance with the Administrative Procedure Act, it is not so deficient as to be totally void. Since the principal objection of appellants, though not the only one, related to the distance of the private club from the church of which appellant Theodore Jones was the minister, we do not feel that we are called upon to remand this case for further findings and conclusions at this time in view of the circumstances prevailing here.

Since appellants have failed to demonstrate error in the circuit court’s review, the judgment is affirmed.

Harris, C.J., and Byrd and Purtle, JJ., did not participate.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Wanda Jo SIMS v. FIRST NATIONAL BANK, Harrison
    79-244
    590 S.W. 2d 270
    Opinion delivered December 3, 1979
    (In Banc)
    [Rehearing denied January 7, 1980.]

      Thomas A. Martin, Jr., for appellant.

      Terry M. Poynter, of Poynter, Huckaba & Gearhart, for appellee.
   John A. Fogleman, Justice.

The cause of action involved on this appeal was commenced on December 16, 1977, when appellee First National Bank of Harrison filed a third party complaint against appellant Wanda Jo Walls Sims and her husband C. J. Sims for foreclosure of two mortgages in an action which had been instituted by a materialman to establish and foreclose a lien for materials and supplies. One mortgage was on a house in Robinwood II, a subdivision of Harrison, on property owned by C. J. Sims. The other mortgage was a second mortgage on a tract of land owned by appellant in Bergman, Arkansas. Appellant filed á counterclaim and cross-complaint in which she alleged that the mortgage on her property was obtained by duress and undue influence exercised by her husband, C. J. Sims, that the mortgage was obtained by appellee’s fraudulent representative that $15,000 in “new money” would be loaned by appellee if her property was mortgaged as additional security to the bank and that she was entitled to rescind the contract on the ground that no Truth in Lending disclosures regarding the transaction were provided to her.

After a trial on the issues, appellant’s contentions were rejected by the chancery court and a decree of foreclosure entered. On this appeal, appellant asserts the following points for reversal:

I
THE COURT ERRED IN FINDING THE APPELLANT’S EXECUTION OF THE MORTGAGE WAS NOT OBTAINED BY DURESS AND UNDUE INFLUENCE AND THAT THE APPELLEE WAS NOT THE PROXIMATE CAUSE OF SAME.
II
THE COURT ERRED IN FINDING THAT THE MORTGAGE SHOULD NOT BE CANCELLED BECAUSE OF FRAUD ON THE PART OF THE APPELLEE BANK.
III
THE COURT ERRED IN FINDING THAT THE TRANSACTION IN REGARDS THE APPELLANT WAS EXEMPT FROM FEDERAL TRUTH IN LENDING LAWS.

We shall treat the points for reversal in the order presented.

Appellant alleged in a cross-complaint against First National Bank that the mortgage, on the tract of land owned by her should be set aside and removed as a cloud on her title because her signatures on the note secured by the mortgage and on the mortgage itself were obtained by duress and threats that her husband would be subject to criminal prosecution if those instruments were not executed. She also alleged that the note and mortgage were obtained by duress and fraud on the part of her husband, C. J. Sims, and that this duress and fraud were the direct results of threats by the bank that her husband would be subject to criminal prosecution. The final decree contained a recital that the court could not find any substantial evidence of duress on the part of plaintiff against appellant, although she may have been upset by the financial circumstances in which her husband, C. J. Sims, found himself and may have feared his being financially ruined. There was evidence that may well have been taken to establish probable cause for a criminal prosecution against C. J. Sims, and threats to prosecute would themselves have been a basis for cancellation on account of duress only if the charge was simuláted. See Union Life Ins. Co. v. Johnson, 199 Ark. 241, 133 S.W. 2d 841; Shattuck v. Watson, 53 Ark. 147, 13 S.W. 516; Marvin v. Marvin, 52 Ark. 425, 12 S.W. 875.

C. J. Sims had been a customer of the First National Bank for many years. Numerous loans had been made to him and the relationship had been satisfactory. In March, 1976, the bank made a loan for $37,000 for construction money for a house to be built by Sims in Robinwood II for resale. The Square Deal Construction Company, in which Sims was a partner and Ronnie Paul, the managing partner, was to construct the house. After some $32,000 had been advanced on the construction money loan, Ron Shaver, the bank’s loan officer who had handled the loan, found, upon inspection in August or September, 1976, that the house was only one-third complete. It appeared that the bank had little or no security for its loan.

The same construction company was, during the period advances were being made to Sims, doing extensive remodeling on the house located on the tract which was the separate property of appellant. This work was started in February, 1976, for a contract price of $17,000. Appellant had purchased this tract, known as the Bergman property, from C. J. Sims and his former wife, Patricia, in 1975, for $28,000, but the title was not transferred until March 17,1976, after C. J. Sims had been divorced from Patricia. Appellant paid $ 1,000 in cash and assumed a mortgage of $23,000 in favor of a savings and loan association. She made three monthly payments on this mortgage debt. It is not shown how she paid the rest of the purchase price, if she did. Appellant and C. J. Sims were married June 20,1976, two months after she had been divorced from her former husband, Thomas Walls, to whom she was married when she started negotiations with Sims, a real estate agent, for the purchase of the property. After appellant married Mr. Sims, the monthly mortgage payments were made from their joint bank account. Appellant had been employed by Airport Realty Company, a partnership in which both C. J. Sims and Ronnie Paul were partners. It seems that she was not employed after the marriage.

Sims testified that he withdrew from Square Deal Construction Company in June, 1976, after a total of $32,000 had been advanced by the bank on the construction loan. Mr. Sims testified that this money went to Square Deal Construction Company, except for $7,000 paid for the lot on which the house was to be built. Appellant testified that Sims’ withdrawal from this partnership took place four days prior to her marriage to him. She stated that Mr. Sims agreed, at that time, to assume the $17,000 remodeling cost. C. J. Sims testified that when he withdrew from the partnership, it was agreed that Square Deal Construction Company would complete both the house in Robinwood II and the remodeling job. When confronted, Sims told Shaver that not all the money advanced by the bank had gone into the house in Robinwood II, but assured Shaver that he could get the house finished in six months.

Appellant is in no position to assert that the mortgage was obtained by duress because of fear of prosecution of her husband because there is no evidence that anyone connected with the bank made any threat to her to prosecute him or that a representative of the bank induced her to execute the mortgage by any threat of such prosecution. Goodrum v. Merchants’ & Planters’ Bank, 102 Ark. 326, 144 S.W. 198, Ann. Cas. 1914A 511. Appellant did not testify that such a threat was communicated to her by the bank or by her husband. C. J. Sims testified in a deposition introduced into evidence that he did not believe that he ever revealed the threat of prosecution to her. There is simply no evidence that any such threat was ever communicated to her by anyone. It was not contended at the trial, or here, that the agreement under which appellant signed the mortgage constituted the compounding of a felony. An obligation given in settlement of a civil liability arising from a wrong which is both public and private is not invalid because the offender is also subject to criminal prosecution. Goodrum v. Merchants’ & Planters’ Bank, supra.

The question here then is whether appellant is entitled to a cancellation of the mortgage on her separate property because of duress by her husband. To some extent, this question is dependent upon whether Mrs. Sims executed the mortgage out of a sense of duty to her husband or by reason of his threats. In order to disturb the chancellor’s findings, we must be able to say that, when all the relations of the parties toward each other and the details surrounding the entire transaction are considered, they were clearly against the preponderance of the evidence. Gardner v. Ward, 99 Ark. 588, 138 S.W. 981. This we cannot do. Neither can we say that appellant met her burden of proof that she was compelled, not merely persuaded, to do what she did. Oberstein v. Oberstein, 217 Ark. 80, 228 S.W. 2d 615. We could not say that she did meet her burden unless we accept her testimony as credible and disregard evidence tending to lead to a contrary conclusion, and we are unable to do this. In considering this question, it is significant that Mrs. Sims made no claim that the contract was entered into under duress until this foreclosure suit was filed. Silence or acquiescence in the contract for any considerable length of time amounts to ratification. See Oberstein v. Oberstein, supra. See also, Pirtle v. Pirtle, 166 Tenn. 180, 60 S.W. 2d 172 (1933).

The mortgage foreclosure was filed on December 16, 1977. On January 3,1978, appellant filed an answer that was simply a general denial. Her cross-complaint in which she first raised the issue of duress was filed on February 16, 1978. The mortgage had been executed on June 17, 1977, so for eight months, the duress under which appellant claims to have acted was a well kept secret. It is significant that she did not mention or in anywise indicate to the bank’s officers and employees or the notary public who took her acknowledgment that she was not acting freely and voluntarily. See Rowley v. Rowley, 144 Okla. 157, 290 P. 181 (1930); Wallach v. Hoexter, 17 Abb. N.C. (N.Y.) 267 (1886); Marston v. Brittenham, 76 Ill. 611 (1875). The bank’s loan officer testified that she came into the bank two hours before the arrival of her husband on the date the mortgage was executed at the bank. He testified that, at the time of closing, the atmosphere was calm and casual like a regular, normal closing. Mrs. Sims testified that she inquired why the mortgage debt matured in only six months, but she does not say that she made any other inquiry or protest. Appellant and her husband were actually separated for more than a week in August, 1977. Her failure to complain as soon as the coercion was eliminated is inconsistent with her complaint in the foreclosure action. Marston v. Brittenham, supra. See also, Pirtle v. Pirtle, supra.

In attempting to meet her burden of demonstrating error in the holding of the chancery court and of showing that she had met her burden of proof on this issue, appellant relies upon her own testimony and that of her husband. He testified that, commencing two weeks before he obtained her signature, he regularly discussed the matter of her signing the mortgage and threatened to leave her. She testified that her husband, for more than a week, began talking to her about the mortgage at breakfast, and again whenever he came back home, reminded her of the duties she owed him, accused her of gross disloyalty and threatened to leave her; that she had wanted to talk to her lawyer but was unable to reach him; that she had been married and divorced twice, and feared that her third marriage was beginning to fall apart; and that she had a sick child and an acute need for security. She further relied upon the fact that she gained no financial advantage by executing the mortgage and evidence tending to show that the bank found itself in the position of having a loan of $40,000 outstanding for which it had no collateral, and the fact that Shaver, an officer of the bank, knowing that Mr. Sims was not applying the loan proceeds to the construetion of the house for which the loan was made, made final disbursements totaling $5,000.

Duress by her husband may well be sufficient to invalidate a mortgage executed by a wife to a third party. Duress consisting of threats exciting a fear of such a grievous wrong as death, great bodily injury or unlawful imprisonment, would probably justify a cancellation of a contract if the party, acting under such threats, moved to cancel it promptly. Burr v. Burton, 18 Ark. 214; Duncan v. Hensley, 248 Ark. 1083, 455 S.W. 2d 113. See also, Rowley v. Rowley, supra. The defense of duress was somewhat enlarged in Perkins Oil Co. v. Fitzgerald, 197 Ark. 14, 121 S.W. 2d 877, where it was asserted against the person making the threats; the person alleging that he acted under duress was totally disabled from future employment, and the coercion which caused him to sign a release of liability for his disabling injury was directed against his step-father’s future employment, the loss of which would have seriously affected his mother, himself and the other members of his family. See Mississippi River Fuel Corp. v. Hamilton, 200 Ark. 475, 139 S.W. 2d 404.

Even under the Fitzgerald view, it must be shown that there was a threat of some grievous wrong to establish duress. The threat of a husband to abandon his wife if she does not execute a mortgage on her separate real estate is not sufficient basis for cancellation of the mortgage unless it is made with the knowledge and consent of the mortgagee or the mortgagee knew at the time of the execution of the mortgage that it was executed by reason of such a threat by the husband. Line v. Blizzard, 70 Ind. 23 (1880); Luna v. Miller, 171 Okla. 260, 42 P. 2d 809 (1935); State v. Scoggins, 107 N.C. 959, 12 S.E. 59 (1890); Marston v. Brittenham, supra; Wallach v. Hoexter, supra. See also, Pirtle v. Pirtle, 166 Tenn. 180, 60 S.W. 2d 1972 (1933); Donahue v. Mills, 41 Ark. 421; Meyer v. Gossett, 38 Ark. 377. This is but a facet of the general rule that a mortgage executed by a wife cannot be avoided because it was procured by duress practiced by the husband, in the absence of a showing that the mortgagee participated in or had knowledge of it. Harper v. McGoogan, 107 Ark. 10, 154 S.W. 187. See also, Hale v. Hale, 245 Ky. 358, 53 S.W. 2d 554 (1932); Pirtle v. Pirtle, supra; Annot., 4 ALR 864, 868.

The only argument that appellant advances as a basis for knowledge of, or notice to, appellee of duress by C. J. Sims is that the bank was on notice of the relationship between Sims and his wife, and, because of the fact that there was no financial reason for her to enter the transaction, and she had nothing to gain and everything to lose by it, the bank was under the duty to inquire as to the voluntariness of the transaction. This argument by appellant is unconvincing and no authority for it is cited, so we will not consider it extensively. Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606. We should mention, however, that there is no evidence that the bank knew of any marital problems of the parties, at least part of which arose from the arrest of Mr. Sims’ son for some crime, for which he is serving a life sentence; that Sims testified that he assured his wife everything could be worked out in a few months; that Sims probably had more money invested in the property than appellant, who could not account for more than $3,000 of her own money in its acquisition; that appellant testified that if it were to be assumed that his investment in the property was from $17,000 to $22,000, in contrast to her $3,000, it was not unbelievable that he would ask her to put it up as collateral; and that she wanted him to have a chance to clear himself with the bank.

Appellant had the burden of proving duress by clear, cogent and convincing testimony. Duncan v. Hensley, 248 Ark. 1083, 455 S.W. 2d 133; Davidson v. Bell, 247 Ark. 705, 447 S.W. 2d 338. This she failed to do.

Because of the relationship of husband and wife, appellant’s burden of proof may not have been as great on the question of undue influence, but she was not relieved of the burden of showing the bank’s knowledge or participation. We cannot say that she was entitled to cancellation of the mortgage on the ground of undue influence, because there is no evidence that the bank knew of, or participated in, the influence practice upon her. Harper v. McGoogan, supra. See also, Marston v. Brittenham, supra.

Appellant contends, however, that she was induced to sign the mortgage by the fraudulent representation of the bank’s officer that the bank would loan her husband $15,000 in addition to the existing debt. She admits that the evidence is conflicting on this point. The testimony shows that C. J. Sims’ outstanding debt to the bank at the time the mortgage was signed consisted of $37,000 secured by the mortgage on the house under construction and $15,000 represented by unsecured notes. Ron Shaver testified that he did not promise to lend, and that Sims did not request, any additional money. Mrs. Sims testified that she had told Shaver her understanding was that $15,000 additional money would be advanced to finish the house in Robinwood II and that Shaver had said that with six months and $15,000, C. J. Sims could finish the house. She admitted, however, that she had previously testified in a deposition that the $ 15,000 was to be used for an investment by her husband in an industrial park.

C. J. Sims testified that he understood that the $52,000 note secured by the mortgage included an additional $ 15,000, and that this was mentioned at the time the mortgage was signed, but that he had told Shaver that he did not need it for a week or two and that he did not want to pay interest on it in the meanwhile. Mr. Sims said that he first learned, through a subsequent conversation with Shaver, that the additional $15,000 would not be advanced two weeks later. Yet, on cross-examination, Mr. Sims testified that he had examined all the notes and mortgages introduced and that there was no question that he owed the money.

Deborah Keef, a loan secretary employed by the bank, testified that C. J. Sims did ask Shaver about additional money, separate from the transaction involving the mortgage which had just been closed. She said Shaver said that he could not disburse any more funds until he saw how this particular transaction worked out. She recalled that Shaver had used the words “wait and see.” Shaver said that there had been no discussion of an additional $15,000 up until the closing and that he did not recall the request for additional funds about which his secretary had testified.

The chancellor found that the signing of the instruments on which the suit was brought was for the purpose of extending the existing loan for six months to give Mr. Sims an opportunity to finish the house and sell it for a sum that would at least reduce the indebtedness.

A mortgage by a married woman to secure her husband’s debts, whether they be existing debts or debts to accrue, is valid and enforceable. Goodrum v. Merchants’ & Planters’ Bank, 102 Ark. 326, 144 S.W. 198, Ann. Cas. 1914A 511; Collins v. Wassell, 34 Ark. 17; Scott v. Ward, 35 Ark. 480. See also, Ocklawaha River Farms Co. v. Young, 73 Fla. 159, 74 So. 644 (1917). Consideration for the mortgage need not pass to the wife as consideration to the husband is sufficient. Scott v. Ward, supra. See also, Gillespie v. Simpson, _ Ark. _, 18 S.W. 1050. An extension of time for the payment of the husband’s debt is sufficient consideration. Scott v. Ward, supra; See also, United States Banking Co. v. Veale, 84 Kan. 385, 114 P. 229 (1911); Hunt v. Central Savings Bank & Trust Co., 76 Colo. 480, 231 P. 60 (1925); Gibson v. Sheen, 128 Neb. 728, 260 N.W. 186 (1935). The question of fraudulent representations resolves itself into one of credibility on which we must defer to the superior position of the chancellor.

Appellant also contends that the chancellor erred in holding that the transaction was exempt from the requirements of Federal Truth in Lending Laws. She makes no contention that the act applied insofar as C. J. Sims is concerned, or that the debt was not primarily a commercial one, as to him. It is her position that, in the absence of duress, undue influence and the promise of the loan of additional money, her mortgage of her separate property could only be attributable to her personal devotion to her husband and concern for his welfare. Because of this, she says that, so far as she was concerned, the transaction became one of consumer credit as defined by 15 USC 1602. Under that section, a consumer credit transaction is one in which the money, property or services which are the subject of the transaction are primarily for personal, family, household or agricultural purposes. Appellant contends that her position is that of an accommodation maker or surety, that the only service or benefit was to her husband and that there could be no more personal or family purpose for entering into a transaction than saving one’s husband from financial ruin.

Appellant relies upon Cantrell v. First National Bank of Euless, 560 S.W. 2d 721 (Tex. Civ. App., 1977). We find no similarity in that case and this, because the loan in Cantrell was made for the purchase of a motor home and the jury there specifically found that the purchase was not for business or commercial purposes and that there was no evidence that the motor home was acquired for anything other than the dwelling of the daughter and son-in-law of the borrower.

We agree with appellee, the chancellor, and the United States District Court for the Eastern District of Louisiana that it is the use of the money, property or services which is the subject of the underlying transaction, and not the nature of the property given as security, that controls. Sapenter v. Dreyco, Inc., 326 F. Supp. 871 (1971), aff'd. per curiam 450 F. 2d 941 (5 Cir., 1971), cert. den. 406 U.S. 920, 92 S. Ct. 1775, 32 L. Ed. 2d 120; Gerasta v. Hibernia National Bank, 411 F. Supp. 176 (1976). Similarly, the subjective motivation of the mortgagor is not controlling.

The decree is affirmed.

Harris, C.J., not participating.


author: Frank Holt, Justice.

text:
    James C. WRIGHT v. STATE of Arkansas
    CR 79-157
    590 S.W. 2d 15
    Opinion delivered December 3, 1979
    (In Banc)

      Donald E. Bishop, for appellant.

      Steve Clark, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury found appellant guilty of aggravated robbery (Ark. Stat. Ann. § 41-2103 [Repl. 1977]) as a habitual offender with more than four prior convictions and assessed his punishment at 55 years’ imprisonment (Ark. Stat. Ann. § 41-1001 (2) (a) [Repl. 1977]). Appellant, through the public defender, first contends that the court erred in denying his petition for a certificate of summons to several nonresident witnesses, or in the alternative, in denying his motion to depose these witnesses.

The issuance of a petition for certification of a material nonresident witness, which compels attendance at government expense, is not an absolute right and lies within the discretion of the trial court. Ark. Stat. Ann. § 43-2006 (Repl. 1977). See also Reistroffer v. United States, 258 F. 2d 379 (8th Cir. 1958). It is well settled that the court’s ruling on matters pertaining to the trial will not be set aside absent a “manifest abuse of discretion.” Roberts & Charles v. State, 254 Ark. 39, 491 S.W. 2d 390 (1973); and Petty v. State, 245 Ark. 808, 434 S.W. 2d 602 (1968). Here the appellant entered a plea of not guilty by reason of insanity. At a pretrial hearing, appellant sought the attendance of several nonresident witnesses (three psychiatrists, a pediatrician, an osteopath, and the program director at a California State hospital). The trial court denied the petition and the motion to depose. Appellant argues that this was reversible error because the witnesses’ testimony was material and relevant to his insanity defense; i.e., he was suffering from schizophrenia and that a schizophrenic may not be able to control his behavior.

The proffered testimony concerning appellant’s mental condition was conflicting. None of the physician witnesses had examined or treated the appellant within the past two years, and some had not seen him in more than four years. The appellant admitted that the 1966 diagnosis of schizophrenia by one of the psychiatrists was contrary to the final report of eight doctors who had declared him sane and returned him to a Texas court to stand trial. He also admitted that although one of the psychiatrists had committed him to a California State Hospital in 1977, the final hospital report had declared him sane, and he was returned to the California court system. The court allowed appellant’s request that reports of the various hospitals and treating physicians be admitted into evidence. It appears the Arkansas State Hospital, which found appellant without psychosis, had the benefit of appellant’s previous treatments at these hospitals and by these physicians. In the circumstances, we certainly cannot say that the trial court abused its discretion.

Neither can we agree with appellant’s second contention that the court erred in denying his motion for a change of venue due to prejudicial pretrial publicity in the community. Appellant adduced testimony from two local news media representatives that numerous news items were published about this and other pending charges against appellant during the seven months’ interim between his arrest and trial. Appellant did not support his petition by any affidavits as required by Ark. Stat. Ann. § 43-1502 (Repl. 1977). There was no evidence that “the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein.” Ark. Stat. Ann. § 43-1501 (Repl. 1977). Since the appellant has not met his burden of proof by demonstrating that “a fair trial was not likely to be had in the county”, we cannot say that the trial court abused its discretion in denying the motion. Kirkendall v. State, 265 Ark. 853, 581 S.W. 2d 341 (1979).

Appellant’s third contention is also without merit. He avers that the court, after refusing to sequester the jury, erred in not granting a mistrial after five of the jurors had read an allegedly prejudicial newspaper article on the morning of the second day of trial. Although the major portion of the article summarized the testimony and proceedings of the first day, the closing sentences stated that “Wright also faces additional charges of a second count of aggravated robbery, arson and escape in Boone County. No trial date has been set in those cases.” When the judge examined the jurors in chambers concerning possible prejudices, each stated in effect that what they had read in the article was covered the previous day in court and nothing they had read would bias or prejudice their opinion as jurors. None indicated they had read the concluding part of the news article. We cannot say that the trial court abused its discretion in refusing to grant a mistrial. See Moseley v. State, 258 Ark. 485, 527 S.W. 2d 616 (1975); and Cobb v. State, 265 Ark. 527, 579 S.W. 2d 612 (1979).

Neither can we agree with appellant’s contention that the trial court erred in admitting his tape recorded confession into evidence. When the question of the voluntariness of a confession is raised on appeal, we review all of the evidence and make an independent determination based on the totality of the circumstances. The burden is on the state to prove the voluntariness of an in-custody confession. Clark v. State, 264 Ark. 630, 573 S.W. 2d 622 (1978). The finding of the trial judge will not be set aside unless it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974). Here one of the officers, during the course of questioning, stated that “things would probably go easier if Wright told the truth’ ’. In Penton v. State, 194 Ark. 503, 109 S.W. 2d 131 (1937), an officer told the accused that “it would go well with him if he told the truth.” We upheld the admissibility of the confession stating that the statement “was merely an expression of an opinion, and. . . was not coupled with innuendo or subtleties calculated to deceive the prisoner.” In Crooker v. California, 357 U.S. 433, 78 S. Ct. 1287, 2 L. Ed. 2d 1448 (1958), the court stated that an admonition by an officer to tell the truth does not render a confession involuntary. Here the officer also stated that appellant told him he was “involved in” another robbery and, as requested, he told appellant he “would try to get the FBI involved.’’Appellant, age 30, is no stranger to the criminal justice system inasmuch as he admittedly has been arrested some twenty times and incarcerated six or seven times. We certainly cannot agree with appellant’s argument that his confession was a result of a promise of benefits by the investigator and that the court, therefore, erred in holding the confession voluntary and admissible.

Neither do we agree with appellant’s claim that he was in a period of mental stress which made him unable to control his impulses and incompetent to make a confession. Appellant places great emphases on the testimony of a Dr. Jones of the Ozark Regional Mental Health Center who examined him while he was in the county jail. Dr. Jones testified that there was a “possibility of underlying psychosis” in the appellant’s mental condition. However, there was no acute psychosis at the time he examined the appellant; the appellant’ s physical complaints were most likely delusionary; and at the time of the examination, the appellant had good contact with reality. Also appellant’s reliance on a 1975 psychotic report of a Dr. Cole at a California State Hospital is also misplaced. Although the report states that the appellant is ‘ ‘ at times’ ’ ‘ ‘ definitely psychotic’ ’, a later report by the same hospital staff adjudged the appellant sane and returned him to the California court system. We cannot say that the 1975 report of Dr. Cole was more credible than that of the staff s report and Dr. Jones’ testimony. Further, he was examined by the Arkansas State Hospital staff and found without psychosis.

Appellant further argues that his confession was involuntary inasmuch as he had taken four to six dexadrine tablets, an amphetamine which stimulates the body system, shortly following the robbery and was under the influence of this drug when he gave his confession. He testified that the dexadrine made him “talk a lot” and that he would not have given the statement had he not been under the influence of the drug. The officers testified that appellant seemed normal and coherent and there was nothing in his appearance to lead them to believe that he was under the influence of drugs. Another officer, who had the first contact with the appellant a short time following the robbery, testified that the appellant seemed normal and showed no signs of irregular behavior. It was for the trial court to resolve the credibility of the witnesses. After fully reviewing appellant’s three-faceted argument, we cannot say the trial court’s finding that appellant’s confession was voluntary is clearly against the preponderance of the evidence.

Appellant argues next that there was an invalid, warrantless search of his automobile when he was arrested and certain items found therein must be suppressed. On appeal we make an independent determination of whether this evidence should have been suppressed and affirm the finding of the trial court unless it is clearly against the preponderance of the evidence. State v. Osborn, 263 Ark. 554, 566 S.W. 2d 139 (1978). Here, based upon a description of the individual who had committed the robbery and the car he was driving, a policeman stopped appellant on a busy highway some distance from the crime scene. Appellant was observed reaching toward the right floorboard. Within a few minutes a state trooper appeared. This officer looked through the car window and saw an open grocery sack containing guns and what appeared to be some prescription bottles on the front floorboard. The officer removed the sack and recovered two pistols, numerous billfolds and several drug containers.

In Kelly v. State, 261 Ark. 31, 545 S.W. 2d 919 (1977), we said:

The observation of evidence in plain view is not a search, or to say the least, not an unreasonable one. A resulting seizure is not the result of an unreasonable search. Looking at what is in plain view, or not concealed, is not a search, as prying into hidden places would be. (Citing cases.) The basic test is whether the officer had a right to be in the position he was when the objects seized fell into his plain view.

To the same effect see Berry v. State, 263 Ark. 446, 565 S.W. 2d 418 (1978). Here the trial court correctly concluded that the warrantless search was justified under the “plain view” doctrine.

Neither can we agree with appellant’s contention that the court erred in denying his motion for a mistrial after a paper sack marked “Wheeler” was shown to the jury. The appellant argues that the name on the sack improperly connects him with the local robbery of a Mrs. Wheeler. The sack contained drug containers taken during the robbery. The state did not introduce the sack into evidence and there was no indication that any of the jurors saw the name. The denial of appellant’s motion for a mistrial did not constitute an abuse of discretion by the trial court. See Cobb v. State, 265 Ark. 527, 579 S.W. 2d 612 (1979).

Similarly, the fact that one of the witnesses subpoenaed by the appellant failed to appear at the trial would not necessitate a mistrial. According to appellant’s proffer, this witness would testify that while he was a resident at the Arkansas State Hospital, he had observed conditions that “were not conducive to the performance of psychological or medical examinations in cell block areas. ’ ’ When the court denied appellant’s motion for a mistrial, the appellant took the stand and testified that he had been unable to concentrate during the psychological testing. We hold that the trial court did not abuse its discretion in refusing to grant the mistrial.

Appellant’s eighth contention that the court erred in denying its motion to quash the amended information is also meritless. One month prior to trial, upon rejection of a negotiated plea, the information was amended to charge the appellant as a habitual offender pursuant to Ark. Stat. Ann. § 41-1001 (2) (a). Suffice it to say, application of the statute does not constitute double jeopardy, the amendment was timely filed, and it was not error for the prosecutor to file the habitual offender charge when the appellant withdrew from plea negotiations. See Dolphus v. State, 248 Ark. 799, 454 S.W. 2d 88 (1970); Finch v. State, 262 Ark. 313, 556 S.W. 2d 434 (1977); Bordenkircher v. Hayes, 434 U.S. 357 (1978); and Davis v. Bennett, 400 F. 2d 279 (8th Cir. 1968).

Appellant next urges that his convictions of separate felonies, which resulted in concurrent sentences, should only count as one conviction in applying the habitual criminal statute. In effect he argues confinements rather than convictions should be counted. We disagree. Section 41-1001 (2) speaks in terms of convictions rather than confinements. See also Brown v. State, 264 Ark. 248, 570 S.W. 2d 251 (1978). The burglary exception is not applicable here. Ark. Stat. Ann. § 41-1001 (3) (Repl. 1977).

Appellant’s ninth contention is also without merit. Since appellant was brought to trial within the first full term of the Boone County Circuit Court following his arrest, he was not denied his constitutional right to a speedy trial. Wade v. State, 264 Ark. 321, 571 S.W. 2d 231 (1978); Ark. Stat. Ann. § 22-310 (Repl. 1962); and Vol. 4A, Ark. Stat. Ann., Rules of Crim. Proc., Rule 28.1 (a) (Repl. 1977).

Neither can we agree with appellant’s argument that the court erred in denying his motion for examination by a cardiovascular specialist, a neurologist and a nerve specialist during his seven months’ incarceration pending trial and forcing him to trial without appropriate medical treatment. Appellant complained of various ailments including heart problems and a painful lump in his neck. The record indicates that he had been examined by at least four physicians and had undergone numerous blood and heart tests to no avail. Suffice it to say that appellant was not denied proper medical treatment. See Andrew v. State, 265 Ark. 390, 578 S.W. 2d 585 (1979).

Appellant’s final contention that his 55 year sentence exceeds the maximum allowed by law is also meritless. In view of appellant’s seven prior felony convictions, the 55 year sentence imposed by the jury was consistent with the plain language of the statutes which provide in pertinent part:

§ 41-2102 (2):

Aggravated robbery is a class A felony.

§ 41-1001 (2):

A defendant who is convicted of a felony and who has previously been convicted of four [4] or more felonies, or who has been found guilty of four [4] or more felonies, may be sentenced to an extended term of imprisonment as follows:
(a) not less than fifty (50) years nor more than life, if the conviction is of a class A felony;

Affirmed.

Harris, C.J., not participating.


author: Darrell Hickman, Justice.

text:
    Alfred D. HARKNESS v. STATE of Arkansas
    CR 78-107
    590 S.W. 2d 277
    Opinion delivered December 3, 1979
    (In Banc)
    [Rehearing denied January 7, 1980.]

      Thomas G. Montgomery, Public Defender, and Frank C. Elcan, II, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Alfred D. Harkness was convicted in the Crittenden County Circuit Court of burglary and attempted rape and sentenced to imprisonment for a total of thirty years.

He alleges four errors on appeal. The first regards an erroneous instruction and has merit requiring us to reverse his conviction. The others have none and will be mentioned only because they could arise on retrial.

The court allowed an in-court identification of Harkness by the alleged victim. The appellant argues that the line-up the victim saw at the police station about five days after the offense was impermissibly suggestive and tainted the later in-court identification, making it inadmissible. The victim also made a voice identification of Harkness at the same time. We have examined the record and the trial court’s ruling permitting the in-court identification and hold that it passes the test laid down in Warren v. State, 261 Ark. 173, 547 S.W. 2d 392 (1977).

A police officer was allowed to read to the jury a statement that the vi9tim said Harkness made to her when he attempted to rape her. It is argued this was hearsay and was erroneously admitted as evidence to the jury. The statement read to the jury was:

Get up. Come with me. Get on the bed. Get your clothes off and get on the bed. I can use this gun and I will hurt you.

The statement was not hearsay because it was not admitted into evidence to prove the truth of the words stated but rather was relevant to the line-up and voice identification of Harkness made by the victim. The line-up and voice identification had been attacked but this was only part of the evidence offered by the State to prove the identification was fairly made and reliable.

A cigarette lighter found by an investigating officer in the victim’s home was admitted into evidence as the defendant’s. So was a statement made by Harkness when he was shown the lighter at police headquarters. According to a police officer, Harkness said, “That is my lighter.....” It is argued that a proper chain of custody was not established for the introduction of the cigarette lighter. Harkness claimed that he left the lighter in the glove compartment of his vehicle.

The purpose of showing a chain of custody is to prove authenticity. If there is a reasonable probability the evidence is genuine, the trial court’s ruling will be upheld. Baughman v. State, 265 Ark. 869, 582 S.W. 2d 4 (1979).

We find no reason to disturb the trial court’s ruling regarding the cigarette lighter.

The error made which requires us to reverse this case was an erroneous instruction stating, in effect, that alibi is an affirmative defense which a defendant must prove by a preponderance of the evidence. That is wrong for two reasons. First, alibi is not an affirmative defense. Second, the State' must always prove its case beyond a reasonable doubt. That burden is not shifted to the defendant because alibi is raised as a defense. This case was tried before we adopted the Arkansas Criminal Model Jury Instructions, but they correctly state the relevant rule. AMCI 4008 reads:

ALIBI — COMMENT
While alibi instructions have often been used by trial courts in Arkansas, alibi is neither a defense nor an affirmative defense under the Arkansas Criminal Code, but rather a position the defendant may assert to create a reasonable doubt of his guilt. Therefore, no jury instruction should be given. See 21 Am. Jur. 2d, Criminal Law, § 136.

We join those authorities which have rejected the instruction given in this case. See, e.g., Stump v. Bennett, 398 F. 2d 111 (8th Cir. 1968); Lafave & Scott, Criminal Law § 8 (1972).

The State argues, however, there was no timely objection to this instruction. The record, as originally submitted, showed that the defendant’s counsel offered objections to the alibi instruction after the jury retired. That would be too late according to our decisions. Golden v. State, 265 Ark. 99, 576 S.W. 2d 955 (1979).

When the State raised this argument, Harkness asked that we resubmit the case to the trial court to settle the record. Counsel for Harkness argued a timely objection had been made before the jury was given the instructions and that the court noted those objections but asked that counsel make his record after the jury retired. We resubmitted the case to the trial court for a hearing at which the prosecuting attorney, one of the defense counsel for Harkness and the trial judge were sworn and gave their versions of what happened. The prosecuting attorney could not swear that the objection was not properly made before the instruction was given but he was inclined to think it was not. The defense attorney was certain he had made an objection but that the court asked him to make his record after the jury deliberated. The trial judge made no finding, as he could have done, but said:

... I have no memory, really, I was so bewildered and overwhelmed at this criminal term of court, my memory on it is very foggy and I really have no memory about this instruction. I have no memory of — I will say in all candor that I have found it to be a time saving device, when I pretty well have my mind made up on what instructions I am going to give, instead of consuming time while the jury is waiting, I have asked attorneys on frequent occasions to wait and make their objections while the jury is deliberating, simply as a time saving device, and I still feel that that is a time saving device and would not want to discourage that practice and discourage attorneys from agreeing to that by penalizing one who in good faith cooperates and then forgets to make an objection, but I just cannot say with any certainty whatsoever whether that happened in this Harkness case .... [Emphasis added.]

We have to give the defendant the benefit of the doubt in view of the candid remarks of the trial judge, a man of undoubted integrity. Therefore, the case is reversed and remanded for a new trial.

Reversed and remanded.

Harris, C.J., not participating.


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

text:
    Jack L. GUSTAFSON, Sr. v. STATE of Arkansas
    CR 78-209
    590 S.W. 2d 853
    Opinion delivered December 3, 1979
    (In Banc)

      Duncan & Davis, by: A. Wayne Davis and Phillip J. Duncan, for appellant.

      Steve Clark, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Jack L. Gustafson, Sr. was convicted in the Independence County Circuit Court of burglary, attempted theft and soliciting capital murder. He was sentenced to a total of 50 years imprisonment.

He raises numerous issues on appeal. We find prejudicial error was committed and reverse his conviction and remand the matter for a new trial. Our discussion of some of the issues will be limited since there will likely be a new trial.

Gustafson was charged with burglarizing a National Guard Armory and attempting to steal weapons from that armory. He was also charged with soliciting the murder of Ray Seeley who was seeing his former wife.

Law enforcement officials testified that they learned that Gustafson had made statements while he was in the Independence County Jail, on other charges, that he had automatic weapons for sale and that he planned to burglarize a National Guard Armory. A federal agent wired for sound was placed in the cell with Gustafson. He gave Gustafson a telephone number in Louisiana to call in the event Gustafson was interested in selling the automatic weapons and hiring somebody to commit the murder.

After Gustafson got out of jail on bond he made the telephone call. The undercover agent then met Gustafson at the Red Bird Truck Stop in Batesville. At this meeting a tape recording was made of the conversation. It related to the burglary of the armory and the murder of Ray Seeley and was decidedly incriminating. It was admitted into evidence over the objections of the appellant.

On October 26th, the night after the conversation at the Red Bird Truck Stop, the appellant was shot outside the National Guard Armory in Batesville. Gustafson had a gun and the State offered evidence that a pry bar was in his possession at the time he was shot. There was evidence that the armory had been entered with the use of the pry bar. There was no evidence that any weapons were taken.

The first allegation of error is that any conversations with Gustafson in the jail were obtained in violation of the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution as well as Ark. Const., art. II, § 8. Furthermore, the appellant argues that the tape recording made at the Red Bird Truck Stop should have been suppressed as tainted by these violations. The State did not offer as evidence any statements made by Gustafson while he was in jail, but only this later recording. Based on the record before us, all these arguments are without merit. Gustafson’s charges in this case were unrelated to those for which he was in jail and there was no requirement that he be advised of his rights by the undercover agent. Miranda v. Arizona, 384 U.S. 436 (1966) does not apply to this situation. Neither does Massiah v. U.S., 377 U.S. 201 (1964) prohibit the use of the tape. Massiah involved gathering information against a defendant through a “bugged’ ’ informant. Massiah had already been charged with the crime being investigated and had a lawyer in connection with that crime. The Supreme Court of Virginia in Hummel v. Commonwealth, 219 Va. 252, 247 S.E. 2d 385 (1978) considered evidence not unlike that obtained against Gustafson. The court distinguished the Massiah case:

While Massiah and its progeny stand for the proposition that the Sixth Amendment right to counsel proscribes surreptitious interrogation by a government agent of an accused about an offense with which the accused has already been charged, this exclusionary rule does not apply to information legally obtained in the investigation of a new and different criminal offense initiated by the accused while awaiting trial. Hummel v. Commonwealth, 219 Va. 252, 247 S.E. 2d 385, 388 (1978).

There was nothing unreasonable in the fact that an undercover agent was introduced in Gustafson’s cell in connection with conduct that was unrelated to his incarceration. In U.S. v. White, 401 U.S. 745 (1971), the Court said:

If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State’s case. Id at 752.

It was not disputed that Gustafson made a telephone call on his own to the undercover agent after he got out of jail. This fact belies the appellant’s argument of inducement.

The appellant argues it was error for the prosecuting attorney’s “investigator’’, a material witness, to remain in the courtroom although all other witnesses had been excluded from the courtroom during the trial. The appellee argues that the witness was properly allowed in the courtroom by virtue of Subsections 2 and 3, Rule 615. The Uniform Rules of Evidence, Rule 615, reads:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exlusion of (1) a party who is a natural person, or (2) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.

It may have been only harmless error in this case for the trial judge to permit the investigator to remain in the courtroom. The investigator testified after the first witness had been called for the State and his testimony did not appear to relate in any way to the testimony of the first witness. There is no way the “investigator” in this case could qualify as an exception by Rule 615(2). The State did not make a strong case that the presence of the ‘ ‘ investigator’ ’ was essential to the conduct of the trial. In a criminal case it was not contemplated that such a practice would be routine.

Rule 615, Uniform Rules of Evidence, replaces Ark. Stat. Ann. § 43-2021 which provided for no exception to the rule in a criminal case. An accused under that statute could require all State witnesses be excluded. Rule 615 is the same as the federal rule and its purpose can best be learned by studying the recommendations made to Congress.

Weinstein quotes extensively from Senate Judiciary Committee statements in connection with Rule 615(3), which sheds some light on the intent of the United States Congress in adopting the same rule for federal courts:

Many district courts permit government counsel to have an investigative agent at counsel table throughout the trial although the agent is or may be a witness. The practice is permitted as an exception to the rule of exclusion and compares with the situation defense counsel finds himself in — he always has the client with him to consult during the trial. The investigative agent’s presence may be extremely important to government counsel, especially when the case is complex or involves some specialized subject matter. The agent, too, having lived with the case for a long time, may be able to assist in meeting trial surprises where the best-prepared counsel would otherwise have difficulty. Yet, it would not seem the Government could often meet the burden under rule 615 of showing that the agent’s presence is essential .... [Emphasis added.] Report, Committee on the Judiciary, United States Senate, 93rd Cong., 2d Sess., on the Federal Rules of Evidence, p. 26 (1974). As quoted in Weinstein, Evidence, par. 615[01].

The Advisory Committee’s Notes on Rule 615(3) read:

The category contemplates such persons as an agent who handled the transaction being litigated or an expert needed to advise counsel in the management of the litigation. See 6 Wigmore § 1841, n.4. As quoted in Weinstein, Evidence, par. 615[01].

The exclusionary rule is considered as effective as cross-examination in serving the court to garner the truth. It should not be easily circumvented. On a retrial, unless the prosecuting attorney can demonstrate that his investigator is actually essential to the trial of the case, the investigator should be treated like any other witness.

The appellant argues that the court should have granted a continuance. The attorneys for Gustafson were appointed seven days before the trial. The record is not clear whether the attorneys pursued the matter in a timely manner. The attorneys had been negotiating with the prosecuting attorney about this case for some time before their appointment. A motion for a continuance was not filed until the day before the trial. It is unlikely that such a matter will occur on a retrial.

The prosecuting attorney, over the objections of Gustafson, was permitted to require Gustafson to demonstrate to the jury certain actions of his outside the armory on the night in question. Gustafson was required to put on the holster and gun that was found in his possession and demonstrate to the jury his actions just before he was shot. We find nothing prejudicial in this demonstration, because Gustafson had taken the witness stand and testified as to what happened; it was relevant to the issue of his credibility, whether he or the officers were telling the truth about Gustafson’s actions and conduct as he exited the armory. The precise question was whether Gustafson had his gun in hand.

Gustafson argues that he was entitled to separate trials on the charges of burglary and conspiracy. We find no merit at all to this argument since all the charges were related and grew out of the same conversation and course of conduct. Rules of Crim. Proc., Rule 22.2.

The appellant argues his right to cross-examine Sgt. Bob Reynolds and John Ford was improperly limited by the trial court. There is some merit to this argument. At times counsel for appellant was unduly repetitious, a factor no doubt in the trial court’s occasionally limiting cross-examination. This error will no doubt not arise on a new trial. A cross-examiner is given wide latitude and cannot be unduly restricted in eliciting facts which affect a witness’ credibility. Haight v. State, 259 Ark. 478, 533 S.W. 2d 510 (1976).

When Gustafson took the witness stand, as a witness in his own behalf, he was asked by the prosecuting attorney about previous criminal convictions and previous misconduct. The trial judge permitted some of the questions over the objections of Gustafson’s lawyer.

There are circumstances where it is possible for the State to introduce into a criminal trial evidence that the defendant has committed crimes unrelated to those which he is charged. One circumstance is in its case in chief, where, in very limited circumstances, the State may offer evidence of other offenses. Ordinarily, such evidence is not permitted. It is prejudicial by nature and should only be used against a defendant in a criminal action in rare cases. See Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954). Another circumstance is when a defendant in a criminal case takes the witness stand in his own behalf. His credibility becomes an issue and the State may, under certain circumstances, test that credibility by asking the defendant if he has been convicted of certain crimes or if he is guilty of certain misconduct. Moore v. State, 256 Ark. 385, 507 S.W. 2d 711 (1974). Gustafson was cross-examined both about previous convictions and about acts of misconduct.

First, Gustafson was asked on cross-examination if he had been convicted of burglary and larceny in Sharp County, Arkansas. He admitted that he had been. It does not appear from the record that this question was improper under Uniform Rules of Evidence, Rule 609. Rule 609 permits such a question only if the crime was punishable by death or imprisonment in excess of one year or if the conviction involves dishonesty or a false statement regardless of the punishment. The trial judge must determine if the probative value of the question outweighs its prejudicial effect. There are other restrictions, for example a 10-year time limit and a provision regarding the effect of a pardon. If a defendant denies being' convicted of such a crime, the conviction can be proved by extrinsic evidence.

Next, he was asked if he was not, in fact, guilty of possessing several thousand dollars worth of CB radio equipment which had been stolen from Jay’s CB Shop at Batesville. The trial judge sustained an objection to this question. He was then asked if he was not guilty of knowingly possessing a 4-wheel drive Chevrolet pick-up truck which had been stolen from Richard Thomas at Arkansas College in Batesville. Gustafson refused to answer this question, claiming his privilege under the Fifth Amendment. The judge ordered him to answer and he did. These two questions about Gustafson’s previous misconduct, because they were not related to convictions but to misconduct, are governed by Rule 608(b) of the Uniform Rules of Evidence which reads:

(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his privilege against self-incrimination when examined with respect to matters which relate only to credibility.

Rule 608(b) of the Uniform Rules of Evidence changes Arkansas law. Before the adoption of the Uniform Rules it was proper to ask on cross-examination if a defendant was guilty of most any kind of felony. In Butler v. State, 255 Ark. 1028, 504 S.W. 2d 747 (1974), we reviewed some of our prior decisions which had held that it was proper in certain circumstances to ask a defendant if he was guilty of robbery, interstate transportation of stolen property, rape, larceny or assassination. The rationale of permitting such a question was that a person committing such a crime might be prone to lie.

There is no doubt that Rule 608(b) was intended to restrict the use of such evidence, especially in a criminal case. Our rule is based on the federal rule and most commentators take the position that Rule 608(b) should be interpreted restrictively. See McCormick, Evidence, § 42(2ded. 1972); Weinstein, Evidence, § 608[05] (1978).

We read Rule 608(b) to provide that the trial court may, if it finds good faith and that the probative value of such information outweighs the prejudicial effect, allow such a question about certain offenses. The most important change is that the question must be concerning misconduct which relates to truthfulness or untruthfulness. That is, one element of the offense alleged must be an act of dishonesty. The question cannot regard misconduct which has no relation at all to honesty. Weinstein, supra, indicates that misconduct relating to truthfulness would include forgery, perjury, bribery, false pretense and embezzlement. Obviously, some misconduct would not bear on truthfulness. For example, murder, manslaughter or assault do not per se- relate to dishonesty. Burglary and breaking and entering would not be such misconduct unless the crime involved the element of theft. Ark. Stat. Ann. §§ 41-2002, 41-2203. We believe that theft, as it is defined in the Arkansas Criminal Code, involves dishonesty. Ark. Stat. Ann. § 41-2201, et seq.

We are aware that the use of such information can be highly prejudicial to a defendant in a criminal case and that the use of such information may well be abused. No doubt Rule 608(b) was designed to curb this possible abuse. We find three conditions on the use of such information. First, the question must be asked in good faith. This has always been our rule. Balentine v. State, 259 Ark. 590, 535 S.W. 2d 221 (1976); Moore v. State, supra, and Butler v. State, supra. This means the court may require evidence of good faith before it permits such a question to be asked; that is, that the questioner must have credible knowledge that the offense has been committed, not just information based on rumor or speculation. Next, the court in its discretion should decide if the probative value of the question outweighs the prejudicial effect of such a question. Rule 403, Uniform Rules of Evidence, provides for excluding relevant evidence if its prejudicial effect outweighs its probative value. Finally, of course, the misconduct must relate to truthfulness or untruthfulness and that character trait.

The questions asked of Gustafson relate to misconduct which is defined as theft by receiving in Ark. Stat. Ann.§ 41-2206.

The prosecuting attorney asked Gustafson two questions: Both were, had he not, in fact, knowingly possessed certain stolen property, and the prosecuting attorney identified the property, time and place in both questions, as he should have. Those were, on their face, proper questions. The offense of theft by receiving requires that one receive, retain or dispose of stolen property knowing that it was stolen or having good reason to believe that it was stolen. Ark. Stat. Ann. § 41-2206. The witness should be able to answer such a question by a simple yes or no. The State may not go beyond that answer, as it may in the case of a conviction, and prove the misconduct by extrinsic evidence.

In the case of State v. Miller, 92 N.M. 520, 590 P. 2d 1175 (1979), the New Mexico Court dealt with the identical problem. In the Miller case there were some fourteen questions asked of the defendant relating to his guilt of various crimes. The Court said:

. . . The only purpose of the questions was to test defendant’s credibility. State v. Coca, supra. The crimes involved in the questions could not be proved by extrinsic evidence. Evidence Rule 608(b). Defendant answered each of the questions in the negative.
What then was the probative value of the questions? There was none. Under the balancing test required by Evidence Rule 403, the trial court abused its discretion in permitting the questioning because the questions were prejudicial and, in light of the answers, there was no probative value.
We do not hold that a question under Evidence Rule 608(b), which asks for an admission concerning a felony, can never be asked. Our holding is that any one of such questions is prejudicial, see State v. Rowell, 77 N.M. 124, 419 P. 2d 966 (1966) and, if there is nothing indicating the question has probative value on the question of credibility, it is an abuse of discretion to permit the question. When the question is under Evidence Rule 608(b), a prosecutor, who seeks to have a defendant make an admission concerning a felony when there has been no conviction, hazards a reversal absent a showing of probative value because of the prejudicial nature of the question.
We arrive at the same conclusions.

In Cox v. State, 264 Ark. 608, 573 S.W. 2d 906 (1978), two statements were made which are inconsistent with this opinion. It may have been the question asked in Cox was improper for other reasons, but our opinion does not show that. We said in Cox that it was improper to ask a defendant if he had not, in fact, committed a robbery on the same day of the offense with which he was charged. We said that the question itself was improper and in that regard we were mistaken. Such a question would not be impermissible under Rule 608 if it were asked in good faith and permitted in the discretion of the judge because robbery is an act of dishonesty.

We were also mistaken in Cox if we left the impression that a negative answer to an improper question results in no prejudicial error. There is no doubt that such a question harms a defendant’s case. When it is proper, about a type of misconduct that is relevant, it is allowed only because it is relevant to the determination of the credibility of the defendant. But to say that a negative answer always removes the prejudice in every case goes too far. Prejudicial error may result whether the question is properly phrased or not. We cannot predict whether prejudice can be removed in every case.

The trial court sustained an objection to the first question regarding the stolen CB radios. For what reason we cannot say. Then the trial court required Gustafson to answer the question about the 4-wheel drive truck. Gustafson claimed his privilege against self-incrimination regarding this question. The trial court, clearly in error, ordered Gustafson to answer the question. Rule 608(b), specifically the last paragraph, provides that the privilege against self-incrimination is preserved in such circumstances. This was prejudicial error that requires us to reverse the judgment of the court.

The difficult question for us is whether both of these questions may be asked of Gustafson at a retrial if he takes the witness stand. That presumes too much. First of all the judge sustained an objection to the first question for some reason finding it improper. No doubt the trial judge had good reasons for sustaining that objection. We would not presume that those reasons no longer exist, although they might. Obviously that question should not be asked again in this case unless the trial judge in advance makes a decision that it is a proper question, asked in good faith and its probative value outweighs its prejudicial error. The second question, also on its face a proper question, must withstand the same scrutiny by the trial judge whose discretionary judgment we cannot predict. That would, no doubt, have some bearing on possible prejudice. If both questions were deemed improper by the trial judge, it would be difficult to say prejudicial error was not committed by the asking alone.

We cannot predict for future cases what questions will or will not be so improper as to require a new trial. We do not intend to be so restrictive in our application of Rule 608(b) as to remove a valuable tool in garnering the truth. However, we do want it made clear that the use of such evidence in a criminal case creates a real hazard of a mistrial or a reversal. Prosecuting attorneys would be well advised to procure a ruling from the trial judge before asking such quetions before a jury.

Reversed and remanded.

Harris, C.J., not participating.

Byrd, J., concurs.

Holt, J., dissents.

Frank Holt, Justice,

dissenting in part. I would adhere to the views expressed in Cox v. State, 264 Ark. 608, 573 S.W. 2d 906 (1978), which is overruled today. The majority’s view meets the prophecy of Weinstein when he wrote: ‘ ‘ Such an approach paves the way to an exception which will swallow the rule.” Rule 608(b) was not meant to include every act of dishonesty but only those going to the veracity of the witness.