text:
    Bob WICHMAN v. Tom HUGHES, d/b/a Oak Brook Stables
    5-5155
    450 S. W. 2d 294
    Opinion delivered February 23, 1970

      W. Q. Hall, for appellant.

      Putman, Davis if Bassett, for appellee.
   George Rose Smith, Justice.

The only question presented by this appeal is whether the defendantappellee, Tom Hughes, has sufficiently transacted business in Arkansas to allow our courts to exercise personal jurisdiction over him under the Uniform Interstate and International Procedure Act, Ark. Stat. Ann., Title 27, Ch. 25 (Supp. 1969). The trial court answered that question in the negative and therefore granted the defendant’s motion to quash service.

The facts are agreed upon by stipulation. The plaintiff Wichman sells horses at his home north of Huntsville, in Madison county. In November, 1968, Hughes, a resident of Illinois, sent Robert DeVore, his manager-trainer, to Arkansas with authority to buy horses for Hughes. DeVore bought two horses from Wichman for $4,100, gave a $500 check as a down payment, and agreed to take delivery by sending a van for the horses. Three days later DeVore telephoned Wichman and bought a third horse for $600. In mid-December another Hughes employee came to Arkansas with a van, picked up the three horses, and took them to Illinois, giving a $4,200 check for the rest Of the purchase price. That check was not honored, apparently because the maker stopped payment. This suit upon the check followed.

A state’s permissible personal jurisdiction over nonresidents was expanded by the Supreme Court’s decisions in McGee v. International Life Ins. Co., 355 U. S. 220 (1957), and Hanson v. Denckla, 357 U. S. 235 (1958), which held in substance that a person who avails himself of the privilege of conducting activities in another state is subject to suit there if his contacts in that state have been such that the maintenance of the suit would not offend traditional notions of fair play and substantial justice.

Illinois has been a leader in exercising the extended jurisdiction made possible by the Supreme Court’s holdings. The Uniform Act was patterned after the Illinois long-arm statute and, according to the Commissioners who drafted it, “should be given the same expansive interpretation that was intended by the draftsmen of the Illinois Act and has been given by the courts of that state.” Commissioners’ Note to § 1.03 of the Uniform Act, 9B U. L. A.

It cannot be doubted that the Illinois courts would uphold the assertion of personal jurisdiction over this appellee upon the facts of this case. Our statute confers personal jurisdiction over a nonresident as to a cause of action arising from that person’s “transacting any business in this State.” Ark. Stat. Ann. § 27-2502. Professor David P. Currie, in an exhaustive study of the Illinois cases, points out that the Illinois courts have applied their long-arm statute to situations involving, as here, a single transaction:

The Illinois statute is not explicit on this, and the “transaction of any business” could have been held by an unsympathetic court to be a synonym for the earlier restrictive term “doing business.” Again in the spirit of the statute’s purpose to expand jurisdiction to the modern constitutional limit, however, the courts have consistently upheld jurisdiction under section 17 over an isolated business transaction with the requisite connection to this State. [Citing and discussing Berlemann v. Superior Distrib. Co., 17 Ill. App. 2d 522, 151 N. E. 2d 116 (1958); Kropp Forge Co. v. Jawitz, 37 Ill. App. 2d 475, 186 N. E. 2d 76 (1962); and National Gas Appliance Corp. v. AB Electrolux, 270 F. 2d 472 (7th Cir., 1959).]
These decisions are plainly correct. A single transaction resulting in injury or loss to a person within the reach of a policy of an Illinois law is sufficient to give the State an interest in providing a forum for his compensation, whether the suit be called “tort” or “contract.” ... It does not seem unfair to the defendant, in the light of this interest to require him to defend in Illinois a suit arising out of such a contract, when he has sent his agents into the State to solicit or to conclude the agreement. That the defendant has also conducted other and unrelated activities in the State may or may not make it more convenient for him to defend here, but the basic requirement that he make voluntary contact with the State is satisfied without such additional contacts. [Currie, The Growth of the Long Arm: Eight Years of Extended Jurisdiction in Illinois, 1965 U. of Ill. Law Forum 535, 565.]

Other cases involving a statute like ours, considering a single contractual transaction, and sustaining the exércise of personal jurisdiction, include: Clinic Masters v. McCollar, 269 F. Supp. 395 (D. C. Colo., 1967); National Bank of America at Salina v. Calhoun, 253 F. Supp. 346 (D. C. Kan., 1966); Hamilton Nat. Bank of Chattanooga v. Russell, 261 F. Supp. 145 (D. C. E. D. Tenn., 1966); Cox v. District Court, 417 P. 2d 792 (Colo., 1966); Melfi v. Goodman, 69 N. M. 488, 368 P. 2d 582 (1962); Griffiths & Sprague Stevedoring Co. v. Bayly, Martin & Fay, 430 P. 2d 600 (Wash., 1967).

We regard the principle underlying those decisions as a sound basis for the assertion of jurisdiction over this appellee. Hughes voluntarily sent his agent into Arkansas to buy horses. He voluntarily sent another agent here to remove the animals from this jurisdiction, leaving the seller with only a check that proved to be worthless. The transaction was presumably governed by Arkansas law. Hughes presumably relied upon that law in deciding that he was not bound to pay the full purchase price. We can see nothing unfair, nothing that offends traditional notions of justice and fair play, in requiring Hughes to defend his position in' the courts of this state.

Reversed, with directions to overrule the motion to quash service.


source: Caselaw Access Project

author: Lyle Brown, Justice. Conley Byrd, Justice,

license: Public Domain

text:
    James TYGART v. The STATE of Arkansas
    5456
    451 S. W. 2d 225
    Opinion delivered February 23, 1970
    [Rehearing denied March 30, 1970.]

      Jeff Duty, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant James Tygart was convicted of violating the Arkansas Drug Abuse Control Act. He was found in possession of an automobile containing a large quantity of dextroamphetamine tablets, marketed under the trademark Dexedrine. Appellant here alleges the drugs to have been confiscated under illegal searches and seizures; also, he contends that the testimony of the accomplice was not substantially corroborated.

The facts incident to Tygart’s first encounter with the officers are brief. Officer Quimby Johnson testified that he and two fellow officers were on the lookout for Tygart; that from facts furnished Johnson by a confidential source, Johnson had reasonable grounds to believe that Tygart was returning from Mexico in a red and white Rambler station wagon with a large quantity of Dexedrine tablets. At approximately 3:30 a.m. on May 22, the officers spotted the described vehicle on Highway 68 just east of Tontitown, Washington County, and recognized the driver, Tygart. The latter stopped the station wagon on signal from the officers. After checking Tygart’s driver’s license, the officers made a cursory search of the car and found 120 bottles of tablets. After that discovery the officers placed Tygart and his companion under arrest. The first point for reversal is that the fruits of the described search, having been made without a search warrant, were not admissible in evidence, being precluded by the unreasonable search provisions in the Fourth Amendment to the United States Constitution and Ark. Const, art. 2, § 15.

The right of officers to stop and there search a motor vehicle under certain circumstances without a warrant or previous arrest was treated thoroughly in 1925 with the pronouncement in Carroll v. U. S., 267 U. S. 132. The fundamental requirements of the "Carroll Rule” are (1) that the officers have reasonable cause to believe the vehicle contains that which by law is subject to seizure, and (2) that it is not reasonably practicable to obtain a search warrant. To the same effect see Wharton’s Criminal Law and Procedure (12th Ed. 1957); also see Chimel v. California, 395 U. S. 752 (1969). In Burke v. State, 235 Ark. 882, 362 S. W. 2d 695 (1962), the officers stopped the car and searched it without a warrant. In upholding the reasonableness of the search this court said:

In the case at bar, the testimony of the officers as to the heavily loaded car, their knowledge of appellant’s reputation as a known bootlegger, and the strong odor of wild-cat whiskey in the car all add up to probable cause for the search.

In commenting on the search of an automobile involved in Mann v. City of Heber Springs, 239 Ark. 969, 395 S. W. 2d 557 (1965), we said:

It is true that not all searches and seizures without a warrant are prohibited. Only those searches and seizures which are unreasonable are prohibited by the Fourth Amendment to the United States Constitution and Art. 2, § 15, Arkansas Constitution. We recognize the rule that an automobile may be searched without a warrant where there is reasonable or probable cause for the belief of the officers that contents of the automobile offend against the law.

In view of the total circumstances in the case before us, we think the search was reasonable and the fruits of that search admissible. Officer Johnson. testified that he had been reliably informed that James Tygart would be returning from Mexico with a quantity of illegal drugs and that he would be driving a 1960 red and white Rambler. Subsequently, and at an unusual night hour, Johnson identified the car and the driver on a “back-door route” to Springdale or Fayetteville, his logical destinations. Appellant did not challenge the search on the grounds that it would have been practicable under the circumstances for the officer to have obtained a search warrant before making a cursory examination of the contents of the vehicle.

Now to the second search of the automobile. In the afternoon of May 23, Officer Johnson obtained a search warrant from Judge Cummings, searched1 the car, and found an additional box containing 128 bottles of Dexedrine tablets. Appellant moved to suppress that evidence on the ground that the State could not produce an affidavit upon which the issuance of the search warrant should have been based. Neither Officer Johnson nor Judge Cummings could state for certain that an affidavit was in fact executed. It is undisputed that Officer Johnson related under oath to Judge Cummings facts which constituted probable cause for the search. Thereupon the judge executed a standard printed form search warrant after inserting in his handwriting the substance of the facts related to him by Officer Johnson. That warrant was introduced in evidence over appellant’s objection. The warrant reads:

SEARCH WARRANT

In the Circuit Court of Washington County, Arkansas

STATE OF ARKANSAS ) ss COUNTY OF WASHINGTON)
TO ANY SHERIFF, CONSTABLE OR POLICEMAN IN THE STATE OF ARKANSAS:
Affidavit having been made before1'me by Quimby Johnson that he has reason to believe that on the premises known as 1960 Rambler Station Wagon, License No. AGE 157, registered to Chester Hill, located behind Washington Co. Court House in the City of Fayetteville, County of Washington, State of Arkansas, there is now being concealed certain property, namely firearms and/or amphetamine and other stimulant and depressant drugs and other illegal drugs which are concealed in and about said car for the reason some 'firearms and illegal drugs were found on the floor of the said station wagon when the car was stopped and the occupant, James Harvey Tygart was arrested. He was taken by me to the County Jail before I had completed search of the car and I am satisfied that there is probable cause to believe that the property so described is being concealed on the premises above described and that the foregoing grounds for application for issuance of the search warrant exist. YOU ARE HEREBY COMMANDED to search forthwith the place named for the property specified, serving this warrant and making the search at any time in the day or night and if the property be found there to seize it, leaving a copy of this warrant and a receipt for the property taken, and prepare a written inventory of the property seized and return this warrant and bring the property as required by law.
DATED this 23 day of May, 1969.
[Signed] Maupin Cummings, Circuit Judge

Most jurisdictions, federal and state, have statutes requiring a written affidavit as a prerequisite to the issuance of a search warrant. In fact they are so numerous that most text writers flatly state as a general rule of law that a written affidavit is required. We have no general and comprehensive search warrant statute. As various criminal laws have been enacted the Legislature has added a search provision in those situations when it was deemed needed. Examples of such statutes are gaming, stolen property, prostitution, machine guns, and intoxicating liquors. None of those specific statutes requires a written affidavit for a search warrant.

The Constitution of the United States, amendment 4, and Ark. Const, art. 2, § 15, are almost identical, and we see no substantive difference. Our Section 15 is as follows:

UNREASONABLE SEARCHES AND SEIZURES. —The right of the people of this State to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.

The phraseology is not complicated. They both require a showing of probable cause, supported by oath or affirmation, and the warrant must particularly describe the place to be searched and the objects to be seized. There is no mention of a written affidavit.

We find three jurisdictions in which the courts dealt with the same phraseology contained in the provisions above cited. The statutes of Washington require only an oath or affirmation to support a finding of probable cause. In two different cases writings were presented to the magistrate and they were both void. However, in each case, witnesses appeared before the magistrate and gave oral testimony. State v. Walcott, 435 P. 2d 994 (Wash. 1967); State v. Malbeck, 419 P. 2d 805 (Wash. 1966). In Walcott the court said:

Although the federal practice, which results in making and preserving a contemporaneous record of the proceedings before the magistrate, may be preferable; however, it is not a constitutional requirement under the Fourth Amendment.

Sparks v. U. S., 90 F. 2d (1937). At the time of the decision in Sparks the Criminal Code, 18 U. S. C. A. § 287, authorized the issuance of a search warrant upon a showing of probable cause submitted under oath or affirmation. The affidavit which formed the basis of the search warrant was insufficient. However, the United States Commissioner testified that the affiant’s informant appeared before him under oath and related that the accused had told him that he had counterfeit molds at his home. The court held that the oral testimony related by the Commissioner was sufficient to support a finding of probable cause. The court related that it had been cited no case (save one which was not in point) construing a search warrant statute such as the one cited which holds that competent oral testimony does not establish probable cause. The court said, “oath or affirmation,” within the meaning of the Fourth Amendment, includes sworn oral, as well as written, testimony.

In United States ex rel Boyance v. Myers, Superintendent, 270 F. Supp. 734 (1967), Boyance sought to set aside a Pennsylvania conviction of 1961. He attacked the validity of the search of his home and automobile. The affidavit for the search warrant did not support a finding by the judicial officer that there was probable cause for the issuance of the warrant. However, it being established that the officer who obtained the warrant gave sufficient unrecorded oral testimony, the warrant was held valid. There the court said:

The Fourth Amendment requires only that probable cause be 'supported by Oath or Affirmation,’ it does not require that the support be in writing. Oral testimony as well as affidavit in writing, may serve as the basis for the issuance of a warrant under constitutional standards.

There can be no question as to the better procedure. The preservation of the proceedings before the magistrate issuing the warrant is much to be preferred. Time erases the availability of witnesses and the memory of those witnesses still available, particularly in the instances of the many belated petitions in criminal cases. On the other hand, it is not for us to insert the provision into the law.

Finally, appellant contends that the corroboration of the accomplice is insufficient to sustain the verdict. Harry Lane testified that he furnished the automobile for the trip; that the two went to Mexico for the purpose of buying Dexedrine tablets; and that appellant made the purchase and loaded the two boxes in the car. When appellant was apprehended he was driving the vehicle; he was driving on a secondary highway at 3:30 a.m. Within reach of his right arm were two weapons, and immediately to the rear of the front seat, and within the driver’s reach, were 120 boxes of illegal cargo. Harry Lane was sleeping in the rear of the vehide. The facts we have recited tend to connect appellant with the crime and that is sufficient, it being found that the corroborating evidence is substantial.

Affirmed.

Byrd, J,, dissents.

Conley Byrd, Justice,

dissenting. I disagree with the majority view that the oath or affirmation required by the constitution as a prerequisite to issuance of a search warrant does not have to be in writing. It is pointed out in 79 C. J. S. Searches and Seizures § 73, that a valid search warrant may issue only on the application therefor under oath or affirmation in the form of a complaint or affidavit sufficient in form and substance to support the warrant. The reason for requiring a writing was set forth in Sullivan v. Commonwealth, 304 Ky. 780, 202 S. W. 2d 619 (1947), as follows:

“. . . The reasons for requiring the filing of an affidavit as a prerequisite to the issuance of a search warrant are: (1) To enable the officer whose jurisdiction is invoked to determine judicially whether probable cause exists for issuing the warrant; and (2) to fix responsibility for civil redress or criminal prosecution in the event of a false accusation. Goode v. Commonwealth, 199 Ky. 755, 252 S. W. 105. Since the. issuing officer is the sole authority in whom the judicial discretion rests, he may not delegate this function of his office to the accuser. When an officer issues a warrant on the strength of a statement that the affiant has ‘good and sufficient information’ upon which to form a belief that contraband property is being concealed, and the affidavit fails to disclose the substance of the information, such officer permits the accuser to usurp the judicial function of his office; and since no fact has been recited to substantiate the charge, the accused would be without civil redress and there would be no basis for prosecution if the accused has been falsely charged...."

Our laws require that all applications made to the circuit court upon which a process or order is issued must be in writing. See Ark. Stat. Ann. § 27-1101 (Repl. 1962), and Rosewater v. Schwab Clothing Co., 58 Ark. 446, 25 S. W. 73 (1894). No judge would consider issuing an order citing a man into court to show cause why he should not be held in contempt unless he had a written application therefor. Should we require anything less when the writ being issued is a search warrant, a matter that the framers of the Constitutions of the United States and this State thought to be of such importance as to attempt to regulate the issuance thereof?

The injustice of issuing search warrants without written application is further compounded by our holding in Moore v. State, 244 Ark. 1197, 429 S. W. 2d 122 (1968), wherein we held that the burden was on the person attacking the warrant to show its invalidity. Under this procedure a person whose home has been ransacked has absolutely no remedy for the wrong done him. He cannot sue the sheriff because he acted under color of law, Appling v. State, 95 Ark. 185, 128 S. W. 866 (1910), and he cannot sue the judge or magistrate because of the doctrine of judicial immunity. Therefore, since the burden of proof is on the person complaining to show that the warrant was issued without probable cause, he is completely remediless unless the magistrate or judge has a good and convincing memory. I do not believe that in our quest to enforce the law we should render our citizens so helpless about a right which the framers of our constitutions thought important enough to call a “Bill of Right.”

For these reasons I respectfully dissent.


author: John A. Fogleman, Justice.

text:
    Samuel PETERS, III v. The STATE of Arkansas
    5451
    450 S. W. 2d 276
    Opinion delivered February 23, 1970

      Theodore Lamb, for appellant.

      Joe Purcell, Attorney General; Don Langston and Mike Wilson, Asst. Attys. Gen., for appellee.
   John A. Fogleman, Justice.

We reverse appellant’s conviction of the crime of possession of marijuana alleged to have been committed on September 26, 1968, because of the refusal of the circuit judge to give appellant’s requested instruction on the defense of entrapment. The state does not contend that the proffered instruction was incorrect. It only contends that there was no evidence to warrant the giving of the instruction. We disagree with this argument.

The evidence showed that on September 25, 1968, Special Agent Bramwell of the Federal Bureau of Narcotics Control went to the commercial art studio on Scott Street in Little Rock, occupied by appellant, at the invitation of Lucy Brown, who had been invited, along with Michael Gruiner, to spend the night at Peters’ studio. The agent was using an assumed name and, of course, did not disclose his capacity as an officer. His purported purpose in going there was to try to help repair an automobile belonging to Lucy Brown and Michael Gruiner. They introduced him to Peters. Bramwell left the Scott Street address with Gruiner and went to look at the automobile. When they returned a few minutes later, those present were discussing the drug situation in Little Rock. Bramwell made some inquiry of those present whether they knew where he could obtain some marijuana. There Was evidence tending to show that a marijuana cigarette was smoked by some of those present. It was produced by Lucy Brown at Gruiner’s request.

On the next day, Bramwell returned to Peters’ place in the afternoon, and discussed the repair of the automobile with Gruiner, after which they went to a parking lot across the street and spent about 30 minutes purportedly checking the vehicle. They then returned to Peters’ residence, where Bramwell went upstairs. Peters then gave the agent three cigarettes wrapped in dark brown paper, which were revealed by chemical analysis to contain marijuana or cannabis sativa.

Peters testified that he had repeatedly responded to inquiries by the agent (whom he knew as Don Weather-ford) that he did not know of any marijuana or where it might be obtained, that he had no dealings, or plans to deal, with marijuana, that he did not know where it could be obtained and had no means of obtaining it and that things were too “hot” in Little Rock to be fooling with it. Peters also testified that Weatherford persisted in talking about the drug, claiming that he wanted some for a girl friend. According to Peters, after four or five requests, he finally told Weatherford to quit bugging him about marijuana, because he could do nothing about it.

According to appellant, he found the cigarettes given to Bramwell next to some bags left behind by Brown and Gruiner. Although he said he was suspicious of them and had started to flush them down the toilet, he gave them to Bramwell, after the agent appeared and again asked for marijuana. His version is that he told Bramwell that he had just found these cigarettes, the contents of which he claimed not to know, and related his plans for disposing of them, but stated that he would let the agent have them if he would just get them out of the studio. It is undisputed that he refused to accept pay for these cigarettes.

While Bramwell’s testimony. conflicts with that of Peters in many respects, we find that if the jury accepted Peters’ testimony, there would be sufficient evidence upon which it might find that there was an entrapment.

Our cases on this defense are rather sparse. Whittington v. State, 160 Ark. 257, 254 S. W. 532, and United States v. Hughey, 116 F. Supp. 649, aff’d, 212 F. 2d 896 (8th Cir. 1953), relied upon by the state, are easily distinguished from the facts in this case. In neither of these cases where the defendants were prosecuted for illegally selling whiskey was there any evidence to indicate that the officer did more than purchase or offer to purchase whiskey. As Judge Lemley said in the Hughey case, affording one the means and opportunity of doing that which he is otherwise ready, willing and able to do does not constitute entrapment. Entrapment does exist where the criminal designs originate not with the accused, but with the officers of the law, and the accused is lured into the commission of an unlawful act by persuasion, deceitful representation or inducement by the officers. Sorrells v. United States, 287 U. S. 435, 53 S. Ct. 210, 77 L. Ed. 413, 86 A.L.R. 249 (1932) [cited with approval in Osborn v. United States, 385 U. S. 323, 87 S. Ct. 429, 17 L. Ed. 2d 394 (1966); followed in Sherman v. United States, 356 U. S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848 (1958)]. In Sorrells, Chief Justice Hughes spoke for the majority in saying that in the absence of evidence that the accused had previously possessed or sold intoxicating liquor, there was sufficient evidence to present a question of fact whether the illegal sale of whiskey was instigated by a prohibition agent who prevailed upon the accused to obtain whiskey for him. This was accomplished by persistent solicitation after two refusals, while the agent reminisced with the accused about experiences as members of the same division in the AEF during World War I. It was there pointed out that the accused was regularly and continuously employed.

Perhaps, neither the persistent solicitation, the use of an alias, the misrepresentation of the purposes for which Bramwell wanted to acquire the marijuana nor the use of friends of appellant for an entree, standing alone, would have been sufficient to raise a fact question as to entrapment, but when taken together along with the total lack of evidence that Peters had possessed or sold marijuana before, there was such an issue.

Other alleged errors which are likely to again present questions on a retrial include the refusal of the circuit judge to require the production of notes from which Agents Bramwell and Melancon refreshed their memories before testifying, the giving of instructions relating to possession of cannabis without a requested modification and failure to correct certain statements made by the prosecuting attorney in the closing argument.

On cross-examination, Bramwell and Melancon both admitted having referred to notes or reports about the events relating to the charges against appellant prior to testifying. Neither had his notes or reports with him. ‘The court refused appellant’s attorney’s request that he be permitted to see these. The matter of requiring a witness who has refreshed his memory before testifying by an out-of-court inspection of memoranda or records but who does not use or have the writings in court to produce them for inspection lies in the sound judicial discretion of the trial judge. Goldman v. United States, 316 U. S. 129, 62 S. Ct. 993, 86 L. Ed. 1322 (1940) [overruled on another point, Katz v. United States, 389 U. S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)]; Reizenstein v. State, 165 Neb. 865, 87 N. W. 2d 560 (1958). See also Annot., 82 A. L. R. 2d 473, 562 (1962). Where, as here, no reason for, or purpose of, the inspection was given when the request was made, we cannot say that the court abused its discretion.

Appellant requested that the instruction advising the jury that cannabis is classified as a narcotic drug should have been modified by adding the following statement: “Only portions of the plant cannabis sativa are classified as a narcotic drug.” Appellant relies upon Ark. Stat. Ann. § 82-1001(13) (Repl. 1960) in which there is a statement that the mature stalk and fiber produced from such stalks are not included in the term cannabis. Appellant is in no position to assert error on this ground because the court gave his requested instruction advising the jury that the state was required to prove beyond a reasonable doubt that appellant possessed parts of the plant other than mature stalks, fiber produced from the stalks or oil and cake made from the seeds.

We see no conflict in the instructions given. Instructions are to be read together to ascertain whether the whole law of the case is correctly declared, and are to be reasonably interpreted. Webb v. State, 150 Ark. 75, 233 S. W. 806; Arnott v. State, 109 Ark. 378, 159 S. W. 1105. Since these instructions do not conflict and neither of them purports to declare the whole law of the case, there is no error. Webb v. State, supra; Arnott v. State, supra; Zinn v. State, 135 Ark. 342, 205 S. W. 704.

In the closing argument, appellant objected to a statement by the prosecuting attorney that “the court has instructed you as to presumption of innocence, reasonable doubt, preponderance of evidence . . . .” Appellant’s attorney asked that the prosecuting attorney be required to withdraw the statement as to the preponderance of the evidence as confusing to the jury, since the court’s instructions did not submit any question as to the preponderance of the evidence. The court merely told the prosecuting attorney to proceed. Appellant’s contention is that the court’s action amounted to an approval of the argument in conflict with the requirement that the jury must be satisfied of appellant’s guilt beyond a reasonable doubt. We will not reverse the action of the trial judge in the exercise of his wide discretion in the control of the argument of counsel, in the absence of abuse. Head v. State, 221 Ark. 213, 252 S. W. 2d 617; Fisher v. State, 241 Ark. 545, 408 S. W. 2d 894, cert. denied, 389 U. S. 821, 88 S. Ct. 43, 19 L. Ed. 2d 73. The trial judge’s superior opportunity of knowing the context in which this statement was made, the occasion for its having been made and whether the jury may have been misled thereby prevents us from saying that there was a manifest abuse of discretion.

It seems unlikely that the other remark complained of will be repeated since it had to do with the effect of a verdict having been directed in favor of appellant in a case consolidated with this for trial.

Reversed and remanded for a new trial.

      Three members of that court would have held that there was entrapment as a matter of law, and ordered the charges dismissed. One would have affirmed the conviction. In Sherman the court held that there was entrapment as a matter of law and directed dismissal of the charges.

      Excellent discussions on the defense will be found in annotations at 33 A. L. R. 2d 883 (1954) and 55 A. L. R. 2d 1322 (1957).


author: Conley Byrd, Justice.

text:
    Leta Wright GILL et al v. Tennie PORTER
    5-5133
    450 S. W. 2d 306
    Opinion delivered February 23, 1970

      Daily & Woods, for appellants.

      Harold Rains, Jr., for appellee.
   Conley Byrd, Justice.

The question presented here is the location of the boundary between riparian owners on opposite sides of an abandoned river bed. Thechancellor fixed the boundary between the parties along a line equidistant from the north high bank and the south high bank. Appellants Leta Wright Gill, William H. Cook, Jr., Darra Jean Cook, William H. Cook, Sr. and Catherine Wright Cook appeal contending that the boundary should have been fixed along the thalweg or valley way of the river at the time it became non-navigable. Appellee Tennie Porter cross-appeals contending that appellants have no standing in court to challenge her right to confirm her title; that the court erred in not basing its decision on Act 126 of 1953; that the court erred in not holding the river changes were avulsive in nature; and that the court erred in changing the boundary between Sebastian and Crawford counties.

We find that appellee’s cross-appeal is not sustained by the record or the law upon which she relies. The parties stipulated that appellee was the riparian owner on the north side of the river before the cutoff by the Corps of Engineers in 1962, and that appellants were the riparian owners on the south side. During oral argument it was admitted that the river reached its 1962 position through the process of eroding away, passing over and filling in. In McGee v. Matthews, 241 F. Supp. 300 (E. D. Ark. 1965), it was pointed out that lands are formed by accretion when the river erodes away, passes over and fills in the lands involved. That case also held that in the event of an avulsion the county line remained in the thalweg or valley way of the abandoned river bed or channel.

We do not find that Act 126 of 1953 is applicable here. That act only amended Sections 1 and 2 of Act 203 of 1945. The latter act by its title was designed to furnish a means whereby the State could acknowledge that a river bed has been abandoned. We can find nothing in the acts which is intended to affect the rights of riparian owners.

On the direct appeal we reverse the trial court. In Parker, Comm’r of Revenues v. Moore, 222 Ark. 811, 262 S. W. 2d 891 (1953), we held that the State’s title rests on navigability and that once the navigability of a stream ceases, the rights of the riparian owner attach to the beds of nonnavigable streams and lakes. In Gill v. Hedgecock, 207 Ark. 1079, 184 S. W. 2d 262 (1944), we held that where a nonnavigable stream constitutes the boundary between adjoining property owners, each property owner takes to the valley way or thread of the stream. Thus, in the instant case, appellants and appellee as riparian landowners owned no right in the bed of the abandoned river channel until the moment it became nonnavigable. The moment the portion of the abandoned river channel became nonnavigable Parker, Comm’r of Revenues v. Moore, and Gill v. Hedgecock would control, thus placing the boundary between the two riparian owners in the thalweg or valley way of the abandoned river channel. That the valley way of an abandoned river bed constitutes the boundary between adjoining owners has been recognized by the decisions from other jurisdictions — see Arkansas v. Tennessee, 246 U. S. 158, 62 L. Ed. 638, 38 S. Ct. 301 (1918). The U. S. Supreme Court there said:

. .It is settled beyond the possibility of dispute that where running streams are the boundaries between States, the same rule applies as between private proprietors, namely, that when the bed and channel are changed by the natural and gradual processes known as erosion and accretion, the boundary follows the varying course of the stream; while if the stream from any cause, natural or artificial, suddenly leaves its old bed and forms a new one, by the process known as an avulsion, the resulting change of channel works no change of boundary, which remains in the middle of the old channel, although no water may be flowing in it, and irrespective of subsequent changes in the new channel**.”

The proof here shows the location of the valley way at the time the Arkansas River abandoned the old channel because of the cutoff dredged by the Corps of Engineers in 1962.

For the reasons herein stated the case is reversed and remanded to the trial court for entry of a decree in accordance with this opinion.


author: Frank Holt, Justice.

text:
    Harold NETHERCUTT and Charles T. PAYNE v. PULASKI COUNTY SPECIAL SCHOOL DISTRICT
    5-5174
    450 S. W. 2d 777
    Opinion delivered February 23, 1970

      Warren & Bullion, for appellants.

      Terral, Rawlings, Matthews ir Turtle, for appellee.
   Frank Holt, Justice.

The appellants are public school teachers whose individual contracts were not renewed by appellee for the academic year 1969-70. Appellants alleged in their consolidated and amended complaints that they had invested many years of work and training, together with large sums of money, qualifying themselves “to pursue the teaching profession;” that their right to pursue their profession is “a valuable property right;” that if their teaching careers are terminated, each would be ineligible to continue membership in the Teachers Retirement System in which they have a direct monetary value; that each of them suffered damages because “he suffered a loss of seniority” in his professional career which affects a teacher’s salary scale; that their “image as a career teacher is disrupted and destroyed;” that the manner in which their teaching contracts were not renewed for the school year 1969-70 caused them injury and damage because “there is an implied inference of incompetence and inability to fill professional requirements;” that appellee’s written administrative policies regarding teacher tenure were a part of their teaching contracts; that the appellee “arbitrarily and capriciously terminated [their] contracts] * * * based upon vague grounds that [their] services have been inefficient and incompetent;” that “at no time has the defendant through its Board or its superintendent notified plaintiffs] of any acts of inefficiency or any acts of incompetency;” and further that appellants’ contracts were “terminated for political reasons and the fact that [they were] the Superintendent’s appointee[s].”

The appellants sought a mandatory injunction directing and requiring the appellee to execute and deliver to each of them a teacher’s contract for the teaching year 1969-70. As a part and parcel of that relief, the appellants asked for an injunction to enjoin and restrain the appellee from terminating their contracts except for just cause and only after a constitutional notice and hearing as required by due process; also, a declaratory judgment that the administrative policies of the appellee Board be made a part of their teaching contracts and that appellants be declared employees of the appellee district; and lastly, that a writ of mandamus be issued restoring appellants to their teaching positions as appellee’s employees and ordering appellee to pay their salaries pursuant to their contracts with the appellee.

The appellee responded by filing a demurrer asserting, inter alia, that the chancery court does not have jurisdiction of the matters alleged in the complaint and that the appellants have an adequate remedy at law. When the appellants refused to plead further, the court sustained appellee’s demurrer and dismissed appellants’ amended and consolidated complaints. From that order of dismissal comes this appeal.

The appellants first contend that the court had jurisdiction of this action. Appellants argue that the relief sought is traditionally one of equity and that the power of a court of equity to issue a writ of mandamus is without question. The appellants cite and rely upon Ark. Stat. Ann. § 33-101 (Repl. 1962):

“The Circuit and Chancery Court shall have power to hear and determine petitions for writ of mandamus and prohibition, and to issue such writs to all inferior courts, tribunals and officers in their respective jurisdictions.” [Acts 1939, No. 54, § 1, p. 117]

However, the appellee contends that the chancery court has no jurisdiction in this matter because this statute contravenes our state constitutional provisions. It appears this is the first time that we have been asked to focus our attention upon the constitutionality of this statute. We must agree that the provision of this act, with respect to the jurisdiction of the chancery court in the case at bar, is in violation of Article 7, §§ 11 and 15 of our Constitution. Section 11 provides:

“The circuit court shall have jurisdiction in all civil and criminal cases the exclusive jurisdiction of which may not be vested in some other court provided by this Constitution.”

The writ of mandamus is a common law writ and a remedy at law which was unknown to equity procedure. 34 Am. Jur., Mandamus, §§ 4 and 6. We have said that mandamus is designed to enforce legal rights and is essentially a procedure at law. Faulkner Lake Drainage Dist. v. Williams, 169 Ark. 592, 276 S. W. 604 (1925); Arkansas State Highway Comm’n v. Otis & Company, 182 Ark. 242, 31 S. W. 2d 427 (1930); Bingham v. McGehee, 185 Ark. 707, 49 S. W. 2d 358 (1932;) Barney v. Texarkana, 185 Ark. 1123, 51 S. W. 2d 509 (1932).

By § 15, supra, the legislature was given the authority to create courts of chancery and to vest them only with jurisdiction in matters of equity. This means such jurisdiction as was properly exercised by a court of chancery when our Constitution was adopted in 1874. German National Bank v. Moore, 116 Ark. 490, 173 S. W. 401 (1915); Patterson v. McKay, 199 Ark. 140, 134 S. W. 2d 543 (1939). The legislature can neither enlarge nor diminish the jurisdiction of chancery courts and any attempt to do so is unconstitutional. Marvel v. State Ex Rel. Morrow, 127 Ark. 595, 193 S. W. 259 (1917). It follows, therefore, that jurisdiction of writs of mandamus, being traditionally common law writs, is restricted to and vested solely in our circuit or law courts. See concurring opinion Ft. Smith Special School Dist. v. Lynch, 242 Ark. 385, 413 S. W. 2d 880 (1967).

Obviously, it is the thrust of appellants’ complaints that by mandamus appellee be compelled to renew appellants’ teaching contracts and to pay them according to the contractual terms for the ensuing school year. We hold that such an action is not cognizable in equity. We also hold that our former decisions, Higgins v. Barnhill, 218 Ark. 466, 236 S. W. 2d 1011 (1951), and any similar cases are necessarily overruled to the extent there is any conflict with this opinion. As previously indicated, it appears that the constitutionality of this statute [Ark. Stat. Ann. § 33-101 (repl. 1962)] was not discussed in our previous cases.

Furthermore, it is well settled that equity takes no jurisdiction to enforce an executory contract for personal services since the remedy at law is adequate. Paving Imp. Dist. No. 105 of Pine Bluff v. Wright, 181 Ark. 919, 28 S. W. 2d 1062 (1930); Hall v. Milham, 225 Ark. 597, 284 S. W. 2d 108 (1955); and 49 Am. Jur., Specific Performance, § 137.

Since the chancery court had no jurisdiction, it becomes unnecessary to discuss appellants’ other contentions.

Affirmed without prejudice to the appellants to pursue any remedies they may have in a court of law.


author: Carleton Harris, Chief Justice.

text:
    James A. BASS v. The STATE of Arkansas
    5489
    450 S. W. 2d 553
    Opinion delivered March 2, 1970

      Skillman ér Furrow, for appellant.

      Joe Purcell, Attorney General; Don Langston and Mike Wilson, Asst. Attys. Gen., for appellee.
   Carleton Harris, Chief Justice.

On September 12, 1968, James A. Bass was charged with the crimes of burglary and grand larceny, the Information alleging that he broke into the Delta Case Company at West Memphis, and took payroll checks, an IBM electric typewriter, a Victor calculator and a Pay-Master check protector. Two other persons were likewise charged with the offenses. On September 16, the Circuit Court appointed counsel for appellant and his brother. On September 30, after counsel had talked with the Prosecuting Attorney, appellant entered a plea of guilty in open court, and was given a 5-year sentence for burglary with 20 months to be served before parole eligibility; the charge of grand larceny was hot acted upon. Appellant’s brother was given a 5-year suspended sentence. On December 10, appellant filed a petition based upon Criminal Procedure Rule No. 1, alleging violation of his constitutional rights, and the Circuit Court subsequently conducted a hearing, at which time evidence was taken. At the conclusion of the hearing, the petition for relief was denied. From the judgment so entered, appellant brings this appeal.

The petition first asserts that the appellant was arrested, taken into custody, and was not advised of the charges against him, nor was he advised of the amount of bail set for his release. In the first place, it would appear that the matters raised in this point became moot, since appellant entered a plea of guilty to the charge. The testimony of Bass was denied by Detective Raymond Gaia of the West Memphis Police Department, who testified that appellant’s brother had confessed to his part in the burglary, and had implicated James.

This information was conveyed to appellant, and the evidence makes plain that the latter was well aware of why he was being taken into custody. It is not really clear but that Bass voluntarily accompanied the officers to the station, but at any rate, the implication of appellant by his own brother furnished probable cause to make an arrest. Probable cause was discussed in Jackson v. State, 241 Ark. 850, 410 S. W. 2d 766.

As to the bail bond, the record reflects that bail was set in the amount of $5,000.00. Appellant complains that this bond was not properly fixed, but there is no reason for complaint, for there is nothing in the transcript that indicates that appellant ever made a request for bond, nor any request that the amount of the bond be reduced. We find no merit in these contentions.

Appellant complains that he was entitled to be served with a copy of the Information, which set out the nature of the charge against him. Amendment 21 to the Arkansas Constitution, which authorizes the several Prosecuting Attorneys to file Informations, contains no requirement that a copy of the Information be served on the person charged with the offense. Bass was served with a warrant when the information was filed, and it is certain that he was acquainted with the nature of the charges against him. Prior to the plea, the charges were explained to appellant by the attorney appointed to represent him, and the offer of the Prosecutor to recommend a term of five years on a plea of guilty to burglary had been discussed by the attorney and the prisoner.

Complaint is made that, though appellant was taken into custody on September 7, 1968, no attorney was appointed on his behalf until September 16. Bass, who executed a waiver of rights, testified that he had requested an attorney prior to signing this waiver; that he signed a confession, but did so in order to keep the officers from “locking up” his sister. Appellant stated in court that he was “repudiating” the confession, and denied that he had anything to do with the burglary. This evidence was very much in dispute. Detective Gaia testified that there were no threats made concerning the sister; that he did not recall Bass’ requesting an attorney before interrogation; that he advised appellant of his right to remain silent, and to have counsel; that Bass voluntarily signed the waiver. Appellant admitted signing the waiver, which appears in the record and meets the standard set out in Miranda v. Arizona, 86 S. Ct. 1602, 384 U. S. 436, 16 L. Ed. 2d 694 (1966). Of course, since appellant pleaded guilty, the confessions were not used, and it is doubtful that that holding could have any application to this case. However, the Circuit Court, at the conclusion of the hearing, relative to the voluntariness of appellant’s statements, said:

“* * * petitioner has testified with some degree of positiveness with relation to his constitutional rights having been violated by the investigating officer at the time he did sign the two statements the record reveals. And the court would like these to be introduced as evidence in this matter, because they were referred to freely. Give it to the court reporter. The court will accept it as an exhibit in the case.

“The court, however, finds that the officers did instruct the petitioner with reference to his rights, as indicated by the waiver, which is in evidence, and those rights were observed by the officers.”

This finding is supported by the record.

We find no reversible error.

Affirmed.

Fogleman J., not participating.


author: George Rose Smith, Justice.

text:
    LINCOLN CONSTRUCTION CO. et al v. Robert McFALLS
    5-5118
    450 S. W. 2d 557
    Opinion delivered March 2, 1970

      Gannaway ir Darrow, for appellants.

      Reinberger, Eilbott ¿r Staten, for appellee.
   George Rose Smith, Justice.

This is a workmen’s compensation case in which the claimant asserts that he sustained a back injury while working for the appellant on December 18, 1964. Both the referee and the commission denied the claim upon the ground that the proof did not establish the occurrence of an accidental injury in the course of the claimant’s employment. This appeal is from a judgment of the circuit court reversing the commission’s decision.

We find the testimony to be in such conflict that a decision either way by the commission -would be supported by substantial evidence. At the time of the asserted injury the claimant was one of a crew of carpenters engaged in roofing a small church at Gould. McFalls testified that he hurt his back while he was pulling up a two-by-six timber, sixteen to twenty feet long, which was being handed up by another workman below. Several of the claimant’s coworkers testified that they heard him say that he had hurt his back, but there is hardly any proof that they observed any indication of an injury other than hearing McFall’s statement.

Other evidence leaves the occurrence open to doubt. McFalls continued to work that afternoon and lost hardly any time from work during the following two months. He did not consult his doctor about the asserted injury until about ten days later. That physician had treated McFalls for pain in his back in 1957, 1958, 1961, and 1963, preceding the alleged injury in 1964. The doctor, with respect to the claimant’s visit some ten days after the accident, stated that he had no recollection of McFall’s having mentioned any cause for his condition, nor had the doctor made a notation of such a statement.

McFalls apparently waited for some time before reporting the asserted injury to his employer. He testified that he at once told his foreman, who was his brother, about the accident, but the brother was not offered as a witness. McFalls also testified that he reported the injury to the employer’s managing partner some two months later, but that witness stated that he knew nothing of the injury until the following June. With the substantial evidence in such conflict we have no choice except to sustain the commission’s decision. Reynolds Mining Co. v. Raper, 245 Ark. 749, 434 S. W. 2d 304 (1968).

The circuit court judgment is reversed.

Harris, C. J., not participating.


text:
    Roy Carroll REYNOLDS v. STATE of Arkansas
    5491
    450 S. W. 2d 555
    Opinion delivered March 2, 1970

      Skillman & Furrow, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This is a post-conviction proceeding under our Criminal Procedure Rule 1. On March 7, 1969, the appellant was convicted, as a habitual offender, of the offenses of kidnaping and rape and was sentenced to 99 years imprisonment upon each charge. Reynolds was represented at the trial by paid counsel, but no appeal was taken.

Thereafter Reynolds himself prepared and filed a petition for a writ of habeas corpus, which the trial court properly treated as a petition under Rule 1. The matter was set down for a hearing, at which Reynolds and his attorney were present. Despite that opportunity to be heard, Reynolds did not offer to testify, did not request that any witnesses be called in his behalf, and asked instead that his petition be considered without any evidentiary hearing. The court perforce merely reviewed each allegation of the petition in the light of the evidence introduced at the original trial. Finding no merit in the petitioner’s allegations, the court denied the petition and remanded Reynolds to confinement in the penitentiary.

In September Reynolds addressed a letter to this court, asking assistance in appealing from the denial of his petition. In that letter Reynolds stated: "What I do know is that I wish to exhaust all my Rights.” We appointed counsel to take the appeal, who was provided with a transcript of the proceeding at no expense to the appellant. The matter has now been submitted to this court upon briefs.

There being no evidence in the record to support the allegations of the appellant’s petition for post-conviction relief, there is actually no issue presented to us for decision. It is plain enough that the petitioner is merely going through the motions of exhausting his “remedy” in the state courts as a preliminary step to instituting some sort of proceeding in the federal courts. In the circumstances we see no reason to dignify the petitioner’s maneuver by discussing it at length. Henceforth similar appeals, if any should be received, will be disposed of by a per curiam reference to this opinion.

Affirmed.

Fogleman, J., not participating.


author: Lyle Brown, Justice.

text:
    R. C. SHORES v. Bessie M. Shores NELSON
    5-5109
    450 S. W. 2d 543
    Opinion delivered March 2, 1970

      Donald Poe, for appellant.

      Mobley, Bullock ir Harris, for appellee.
   Lyle Brown, Justice.

This controversy is between the divorced parents of a deceased soldier and over the proceeds of a life insurance policy taken out by their son. The policy was issued by The Prudential Insurance Company of America to the soldier son under the Servicemen’s Group Life Insurance Act, 38 U. S. C. A. § 765. Bessie M. Shores Nelson petitioned that she be declared the designated beneficiary and that Prudential be enjoined from paying any of the proceeds to R. C. Shores, the father. She also made R. C. Shores a defendant. Prudential paid the face amount of the insurance certificate into the registry of the court and asked for discharge of further liability, which was granted. The trial court found that the son had made a written designation of his mother as beneficiary and that the instrument had been received in the uniformed services prior to the son’s death. The appellant, as a basis for reversal, challenges both those findings.

Congress passed in 1965 an amendment to Title 38 to afford special indemnity insurance for members of the armed forces serving in combat zones. The law is designated “Süb-chapter III — Servicemen’s Group Life Insurance.” The Act provides that each such serviceman is automatically insured beginning with his active duty unless he elects in writing not to be insured. On June 10, 1966, during his processing period under a voluntary enlistment, Maltón G. Shores, the son, made his insurance election. He executed in triplicate DA Form 3054, specifying that he desired to remain insured and designating his mother as sole beneficiary. Under army regulations the original of Form 3054 was to be placed in the service member’s field personnel file, the duplicate copy given to the member, and the triplicate forwarded to the custodian of the member’s financial data records folder.

At the trial of the case appellee produced her son’s copy of Form 3054. She also introduced a letter purportedly written by her son and mailed to her along with the government form. She said she received tliose instruments in June 1966. The letter, among other things, stated, “I am sending a paper to you. This paper is showing that I have life insurance for $10,000.”

Pvt. Shores was killed in action in Vietnam in July 1967. Subsequently there was of course a processing of his army files; during that endeavour it was discovered that the original of Form 3054 was not contained in his permanent file, which we have previously referred to as his field personnel file.

There is yet another signed copy of Form 3054, being the triplicate which regulations provided should be placed in the soldier’s financial data records folder. There was introduced in evidence a certified document from the Army Finance Center. That instrument contains a reproduction of Pvt. Shores’s Form 3054 which compares favorably with the copy possessed by appellee. Its authenticity is not questioned. Unfortunately the document from the finance center does not show the date on which Form 3054 was received by it.

This brings us to the crux of the case. Does the fact that a copy of Form 3054 was never placed in the Shores field personnel file — or placed there and thereafter lost — affect his designation of beneficiary? We think not. The question is whether he complied with the simple statutory requirements (1) that his designation be in writing, and (2) that it be received in the uniformed service prior to his death. We think the chancellor’s findings that the veteran performed those requirements are amply supported by the evidence. At the army processing center it cannot be doubted that the young man signed all documents requested of him to be signed. His copy of Form 3054 (which he sent to his mother) is apparently a receipted copy because it bears the signature “Lt. Richmond” in the upper right-hand corner. When young Shores turned over to the processing officer of the army a signed copy of Form 3054, his designation of beneficiary was as of that moment received in the uniformed service. It then became the duty of the army, not the inductee, to distribute the retained copies in accordance with army regulations.

Appellant’s first point for reversal is that there was no written designation of beneficiary “properly filed with the adjutant general’s office [to be placed in the personnel file] prior to Maltón Gene Shores’ death.” What we have just said answers that point. It should be remembered that this case deals with the original designation of a beneficiary as opposed to a change in beneficiary. Appellant relies strongly on Stribling v. United States et al, 293 F. Supp. 1293 (1968), but that case involved a change in beneficiary. Appellant also cites as controlling Breckline v. Metropolitan Life Insurance Co., 178 A. 2d 748 (1962). In Breckline the involved statute required a filing of written designation of beneficiary in the employing office and that requirement was never complied with during the life of the insured.

Appellant next argues that appellee failed to establish that designation of beneficiary was in fact ever executed. It was clearly established that the signature on the copy of Form 5054 possessed by the mother was genuine and that the covering letter written by the boy was likewise genuine. Furthermore, the Army Finance Center was in possession of a copy.

Appellant’s final point for reversal is based on the argument that a copy of Form 3054 found its way into the file of the finance center under date of December 11, 1967, long after the veteran’s death. The reasoning is that appellee became disturbed when she did not forthwith receive the proceeds of the insurance; that she exhibited her copy to veterans service agencies, which in turn presented it to the finance center; and that the letter stamped it with a filing mark, made a photocopy of it, and returned Mrs. Shores her copy. Nothing in the record actually supports the argument. The filing mark on appellee’s copy does not appear on the copy in the record of the finance center. There is another significant difference between the two copies. Lt. Richmond’s signature on appellee’s copy, to which we have referred, does not appear on the finance center’s copy. It "is also revealed, from a careful examination of the exhibits, that the filing stamp on the mother’s copy is not-the stamp of any government agency; rather it is that of a private central agency formed by all insurance companies participating in the writing and servicing of insurance policies for members of the armed forces.

The wishes of this veteran, who gave his life in combat, are of utmost importance to us. Since we think it clear, as it appeared to the chancellor, that he- was in substantial compliance with the statutory requirements, we have no hesitancy in affirming.

Affirmed.


text:
    Ronald STEEL, Carson Steel, Jr. and Doris Steel v. STATE of Arkansas
    5467
    450 S. W. 2d 545
    Opinion delivered March 2, 1970

      John B. Hainen, for appellants.

      Joe Purcell, Attorney General, for appellee.
   John A. Fogleman, Justice.

Appellants were convicted on May 1, 1968, of robbery of the Bank of Lockesburg on September 27, 1967. The conviction was affirmed on appeal. See Steel v. State, 246 Ark. 75, 436 S. W. 2d 800. Thereafter, we granted appellants permission to seek postconviction relief under Criminal Procedure Rule 3? with respect to the validity of searches made of a pickup truck and a Pontiac automobile. Ronald Steel and Carson Steel, Jr., were occupants of the pickup truck, and Doris Steel was the sole occupant of the automobile when they were arrested on the day of the robbery.

The circuit court denied relief after a hearing on August 12, 1969. It was conceded by the state that search warrants issued for a search of these vehicles after they had been brought from the places of arrest to the scene of the crime were invalid. The ruling of the circuit judge was that the searches were valid as reasonable searches incident to a lawful arrest. Appellants’ argument that the searches were unreasonable under constitutional standards seems to be based upon these contentions: first, there was no probable cause for their arrests; second, the extent of the search at the time and place the male petitioners were caken into custody went beyond constitutionally permissible bounds; and, lastly, that the search of the vehicles at the bank was too remote in time'arid place from the arrests to be reasonable without authorization by valid warrants.

Taking these points in the order stated, we find no merit in • the first. On this point, little, if anything, was revealed in the postconviction hearing that was not in evidence during the trial. The trial judge held that the arrest of the two male appellants was lawful and cited the opinion of this court on direct appeal. As to these appellants, the question was fully considered on the prior appeal and no new argument is advanced on this appeal. We reaffirm our former holding as to the legality of these arrests.

While the legality of the arrest of Doris Steel was not specifically treated in the opinion on the first appeal, the disposition we make of this appeal makes a review of the circumstances of this arrest unnecessary.

Directing attention to the search of the pickup truck at the scene of the arrest, we again find that it was a search incident to a lawful arrest and not constitutionally unreasonable. The sheriff who made the search had apprehended three men after a hot pursuit which led to an apparently obscure, little-used, dead-end road. The officer was alone with three 'men who, as we found in the original opinion, he had reason to believe had participated in the armed robbery of a bank. He was confronted with' the problem of taking and holding them in custody and returning them to the scene of the crime and ultimately to the county jail. It was reasonable to believe that the participants in the bank robbery would have weapons and evidentiary material under their control. Even though he was armed with a rifle, a daring attempt to escape of at least one of the three persons he had apprehended was certainly a possibility a 'prudent officer would consider. Any diversionary áction by one might well permit another to obtain weapons or even to try to escape in the truck. According to Bradshaw, one of the Steel's was not very submissive to arrest. He said that after the sheriff had told the three men to lie on the ground, he had to tell this one two or three times to “lay down” or he (the sheriff) would “put him down.” The pickup truck with its contents presented a hazard to the officer and to his ability to maintain his detention of the arrested persons and to seize any evidence connecting them with the crime before it could be removed. If he succeeded in taking all his prisoners away from the scene, there remained the possibility that one would escape, return and remove the pickup truck and’ its contents. There also remained the possibility that a confederate of the persons arrested would manage to remove this truck or its contents after he left the scene and before he or a person delegated by him could return for the vehicle with or without a search warrant. The only assistance available to him was that of Bradshaw, which he promptly enlisted. It does not appear that Bradshaw had ever, been a police officer. He simply happened to reside near the “dead-end” of the flight of the Steels and their companion. While he proved to be entirely trustworthy, Bradshaw’s ability to control the arrestees for any period of time was not to be taken for granted. Bradshaw testified that the sheriff warned him to be careful.

Hilton had also found it necessary to leave Doris Steel, who he had a right to believe was a -confederate, in the custody or under the surveillance of an impressed citizen. He could not he sure of her whereabouts or activities. An immediate search of the pickup truck for weapons and evidentiary material was clearly indicated. It and its contents were certainly under the immediate control of those persons when arrested. A failure to search the vehicle at this time and place under the prevailing circumstances would have been foolhardy and a dereliction of duty on the part of the officer. The only articles taken from the vehicle at this time were two loaded pistols. Even though Ronald Steel testified that Sheriff Hilton went upon the bed of the truck and took clothing and “guns” from a box and proceeded to search in the glove compartment and under the “dash” and the “back” seat in the cab, and Carson Steel, Jr., stated that the loaded pistols removed by the sheriff were not in plain view but concealed under articles of clothing in a box, we find that this search was not beyond the permissible scope of a search incident to ,a lawful arrest. The opinion in Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), rehearing denied 396 U. S. 869, 90 S. Ct. 36, 24 L. Ed. 2d 124 (1969), appears to be the latest guideline provided by the United States Supreme Court in this field. According to the holding there, the search incident to a lawful arrest could not have gone beyond the area from which the arrested persons might have obtained weapons or other things which may have been used to effect an escape or which could have been used as 'evidence against them. Even when we give appellants’ testimony its strongest probative force, this search was not unreasonable as incidental to a lawful arrest.

Neither was that search unreasonable as the search of an automobile under the special considerations giving rise to more lenient standards on account of vehicular mobility. Even though the United States Supreme Court in Chimel has restricted automobile searches to some extent, as will be presently pointed out, it has clearly recognized the validity of searches of automobiles without warrants when probable cause exists and it is not practicable, because of mobility of the vehicle, to secure a search warrant. In Chimel, the court clearly states that its holding is consistent with those principles stated in Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925) and Brinegar v. United States, 338 U. S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949).

Yet, we are unable to agree with the circuit court that the search of the vehicles at the bank was within constitutionally permissible bounds as incident to the arrest or otherwise. The state conceded at the hearing on appellants’ petition that the warrants for these searches were invalid. Here again, we must turn to the Chimel case for guidance. While a dwelling house search was involved there, the court quoted from and relied upon principles stated in Preston v. United States, 376 U. S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964), where an automobile search was involved. There it had been said that justification for vehicular searches contemporaneous witb arrests was absent where the search is remote in time and place from the arrest. We take this to be the standard to be applied to the searches of these vehicles at the scene of the crime.

When Doris Steel was taken to the bank at Lockesburg by Graves, a private citizen in whose custody the sheriff had left her, the vehicle in which she was found was left on the road where Sheriff Hilton first saw her. It was locked before they left it, and the keys retained by Mrs. Steel. This point was about three miles from Lockesburg. The record showed that Graves delivered Mrs. Steel to Sergeant Page of the Arkansas State Police. The point at which Ronald Steel and Carson Steel, Jr., were arrested was four and one-half to five miles from Lockesburg. Sheriff Hilton, Bradshaw and the three persons arrested left this place about 15 minutes after the arrest. It took about 15 minutes for Sheriff Hilton to take the occupants of the pickup truck to the bank, where he found Sergeant Page of the Arkansas State Police and Agent Rawlings of the Federal Bureau of Investigation. Other officers were also present. Graves went to the bank after he turned Mrs. Steel over to Sergeant Page and remained there some 15 to 20 minutes. He was there when Sheriff Hilton arrived, but was not aware of the search of any vehicles there. Bradshaw testified that Sheriff Hilton left the bank with one. Billy Coulter to get the pickup truck approximately one hour after Hilton and Bradshaw left the place of arrest with the Steels and their companion. Sergeant Page testified that, immediately after arrival at the bank, the sheriff sent someone after the Pontiac. These searches of these vehicles were not made Until the search warrants now conceded to be invalid had been obtained. They must have been conducted at least an hour after the arrests were made.

Perhaps there is no area in which the# task of trial judges has been more onerous than this which requires them to accurately follow the decisions of the United States Supreme Court setting out standards to be applied in determining the reasonableness of searches under Fourth Amendment prohibitions. The pendulum-like swings of the decisions on these standards were traced in Chimel. The trial judge’s holding in this case is based upon the five-four decision in Cooper v. California, 386 U. S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967). There a warrantless search of a motor vehicle was upheld. It took place one week after the arrest. It was conceded that the search was not incident to the arrest. The arrest was for violation of the California narcotics law. California statutes required any officer making an arrest for a narcotics law violation to impound any vehicle used to store, conceal, transport, sell or facilitate the possession of narcotics, and to hold it as evidence until a forfeiture was declared or release ordered. The majority said that the search was reasonable because of its close relationship to the reasons for the arrest and impoundment and retention of the autoiilobile. Great reliance was placed upon the holding in United States v. Rabinowitz, 339 U. S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950), that the test of a warrantless search was whether the search was reasonable, rather than whether it was reasonable to procure a search warrant. Rabinowitz was criticized and substantially overruled in Chimel. The court more nearly followed Mr. Justice Frankfurter’s dissent in Rabinowitz, where he said that the majority had left no criterion for determining reasonableness. Rabinowitz had overruled the rule stated in Trupiano v. United States, 334 U. S. 699, 68 S. Ct. 1229, 92 L. Ed. 1663 (1948), that law enforcement officers must secure and use search warrants whenever reasonably practical. The court clearly seems to have returned to its Trupiano position, at least insofar as a search incident to an arrest is concerned.

In a footnote to the majority opinion in Chimel it is plainly suggested that Cooper was decided in reliance upon Rabinowitz. Certainly it is made clear in Chimel that the United States Supreme Court will henceforth not permit the scope of a warrantless search to go beyond the reasons for which such a search is permitted. Full recognition is given to the principle that a warrantless search of an automobile is permissible when probable cause exists and the mobility of -the vehicle makes the securing of a search warrant impracticable. The decision in Chimel leaves this as the only test which can be applied in this case. While there is no doubt as to the existence of probable cause, the searches of the vehicles at the bank were too remote in time and place to be reasonable as incident to the arrests, and it was not shown that it was not practicable to obtain search warrants or that there was any likelihood that the vehicles would be removed out of the locality or jurisdiction in which the warrant must be sought after they had been brought to the bank. The state’s burden in this regard was virtually insurmountable in view of the fact that no search was attempted until after the invalid warrants were secured. We are not confronted with the situation that would have existed had the vehicles been taken to the bank along with the arrested persons and immediately searched upon arrival there.

We are not aware of any statutory or common-law duty of officers to impound vehicles in which persons suspected of bank robbery are found when apprehended. On oral argument, the assistant attorney general admitted that he had been unsuccessful in a search for authority supporting this view. It might well be. that the officers would have such duty if the vehicle had been found abandoned at the scene of the crime, if the vehicle were one described as having been occupied by the persons who robbed the bank either when they came to or left the bank, or if the vehicle had been stolen. Such is not the case here. Nor is. it shown that the searches were made for the purpose of making inventories for the protection of parties responsible for the vehicles. They were obviously made for fruits of the crime, instrumentalities used in perpetration thereof or evidentiary material. Under all of the circumstances existing here, we think current Fourth Amendment criteria for searches and seizures required search warrants for these vehicles.

The circuit judge also made a finding that it is clear beyond a reasonable doubt that the result would have not been changed had the fruits of these searches been excluded. The United States Supreme Court has, on occasion, recognized a harmless-constitutional-error rule in cases wherein the court could declare a belief that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U. S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

We are unable to agree with the trial judge that there is no reasonable doubt of the conviction of appellants without the evidentiary material discovered and seized as a result of the vehicular search at the bank. It seems clear to us that the lady’s stocking found in the Pontiac was a ctitical bit of evidence against appellants, particularly Doris Steel, as will be seen by examination of our opinion on direct appeal. The importance of the handkerchief and pillow case found in the pickup truck was also emphasized in that opinion when we determined the sufficiency of the evidence to support the jury verdict. We are unable to say without reasonable doubt that a conviction would have resulted without the fruits of the illegal search.

After oral argument and submission of this appeal, appellants have filed an amendment to their petition under Criminal Procedure Rule 1. We have given no consideration whatever to this amendment in arriving at our decision which was actually arrived at before the amendment was filed. The allegations of this amendment relate to what is purportedly newly discovered evidence. The scope of the hearing permissible was clearly defined in the order of this court granting appellants permission to proceed under this rule. Matter alleged in that amendment is clearly without the scope of the Rule 1 permission granted. It is not only outside the permissible scope of the issues in this proceeding, but is clearly outside the scope of post-conviction relief allowable under Criminal Procedure Rule 1. Furthermore, this is not a court of original jurisdiction in these matters. The filing of an amended petition on appeal is unknown to our procedure. There is no prejudice, however, to the right of appellants to produce any admissible evidence available to them upon a new trial, whether it was discovered before or after the former trial.

Reversed and remanded for a new trial.

      For this reason, we will avoid repetition of all the facts stated in the opinion on direct appeal.

      Sheriff Hilton managed to return appellants and their companion to Lockesburg in the rear of a pickup truck owned by Bradshaw, and driven by him, with the sheriff following in his automobile, leaving the searched pickup truck at the place of arrest.

      There has been no suggestion that this decision is not applicable the searches involved in this case.

      As to burden of proof see Peters v. State, 248 Ark. 134, 450 S. W. 2d 276.