author: John F. Stroud, Justice. Richard L. Mays, Justice,

text:
    Christopher THOMAS, Next Friend of Bradley Davis INMON, a Minor v. Frank D. INMON and Catherine INMON
    79-339
    594 S.W. 2d 853
    Supreme Court of Arkansas
    Opinion delivered March 10, 1980

      Spitzberg, Mitchell & Gill, by: Brent Bumpers, for appellant.

      Friday, Eldredge & Clark, by: Donald H. Bacon, for appellees.
   John F. Stroud, Justice.

This is a suit to determine if the family immunity doctrine should bar recovery by an unemancipated minor from one standing in loco parentis for injuries resulting from an unintentional tort. The trial court granted a motion for summary judgment, and we agree that the action cannot be maintained in Arkansas.

On August 7, 1974, Bradley Davis Inmon, at that time two and one-half years of age, was injured while playing in a storage room at the residence of the appellees, his maternal grandparents. Bradley was burned while playing with a gasoline can that exploded and caught fire, necessitating skin grafts and other medical treatments. Bradley, by his next friend, Christopher Thomas, brought suit against appellees for negligence, seeking $25,000 in damages. Appellees had permanent custody of the minor by court decree ánd were in the process of adopting him. At some point after the accident, the adoption proceedings were completed. Appellees raised the family immunity doctrine as a bar to the action and moved for summary judgment. The motion was granted by the trial court on April 30, 1979, and from that order appellant brings this appeal.

The sole issue presented here is whether an unemancipated minor may maintain a cause of action for negligence against a person or persons standing in loco parentis, in this case the maternal grandparents. The parties offer only two Arkansas cases as authority in this matter, and we find no others, Rambo v. Rambo, 195 Ark. 832, 114 S.W. 2d 468 (1938), and Brown v. Cole, 198 Ark. 417, 129 S.W. 2d 245 (1939) .

In Brown a young boy was adopted by his stepfather. Several years later, when the boy was 15 years of age, his adoptive father intentionally administered strychnine poison to him, resulting in his death. The court acknowledged the family immunity doctrine established the previous year in Rambo and commented:

We are not willing to extend the doctrine announced in the Rambo case, supra, so as to prevent an adopted child from bringing suit against his adoptive father for a voluntary tort committed upon him by the adoptive father.

We need not address now the issue of an adoptive parent, as Bradley Davis Inmon was not adopted by appellees until after the tort occurred in the case now on appeal. However, we easily distinguish the Brown case, as the suit there was for an intentional tort.

The Rambo case was a suit by a six year old boy, acting by his mother and next friend, against his natural father, alleging negligence and seeking to recover damages for personal injuries. The court , in establishing the family immunity doctrine in Arkansas stated:

We, therefore, hold that an unemanicipated minor may not maintain an action for an involuntary tort against his parent in this state.

In Rambo, supra, at 834, 114 S.W. at 469, the court also quoted with approval 46 C.J., p. 1324, which states:

An unemancipated minor child has no right of action against a parent or a person standing in loco parentis, for the tort of such parent or person, . . .

We are not persuaded by appellant’s contentions that the family immunity doctrine has become a legal anachronism. Nor do we believe that the policy considerations of family harmony and prevention of collusion and fraud are no longer valid. Although more than 40 years have elapsed since Rambo, we still believe in the sanctity of the family unit and find the statement of the court then is still valid today:

But it is deemed better public policy that occasional injuries of this kind go unrequited rather than encourage or tolerate proceedings so repugnant to natural sentiments concerning family relations.

For these reasons, we adhere to the family immunity doctrine and extend the holding in Rambo to apply to persons in loco parentis as well as to natural parents.

Affirmed.

Mays, J., dissents.

Richard L. Mays, Justice,

dissenting. Formulated by the Mississippi Supreme Court less than 90 years ago, the doctrine of parental immunity for personal torts is an exception to the well established rule of liability for breach of the duty of ordinary care for the safety of others. Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891). As with most exceptions to important legal principles, the burden of persuasion should be shouldered by those pressing the case. Traditionally, those justifying the abolition of the right of a minor child to enforce the duty of ordinary care against a parent by suing for damages have relied upon two considerations:

(1) disruption of family harmony
(2) fraud or collusion between family “adversaries”

Unlike the majority of the court today, I am not persuaded that these policy considerations adequately underpin the doctrine of parental immunity and, therefore, would abolish the doctrine.

Although a tort action by a child against his parent may suggest family disharmony, generally the real party in interest is the insurance company which provides financial protection to the parent. Just as most tort suits are not undertaken in the absence of a deep pocket, few minor children would sue their parents in the absence of insurance. Moreover, no greater disruption of family harmony is caused by a suit pitting a child against a parent than a suit pitting brother against sister or husband against wife which is allowed. Leach v. Leach, 227 Ark. 559, 300 S.W. 2d 15 (1957). As to the consideration of fraud or collusion, no greater danger of collusion exists in child-parent suits than in other suits among family members. Although the possibility of fraud or perjury exists to some degree in all cases, we do not abolish a cause of action solely because of that danger. In short, the likelihood of family discord or collusive suits is not significantly enhanced by permitting child-parent suits and certainly does not justify abolishing an unemancipated child’s right to be made financially whole when wrongfully injured.

I do not deny that a suit between a parent and child, or for that matter between any family members, may be repugnant to natural sentiments. Not only is a parent-child relationship uniquely underpinned with strong emotional ties, but it is accented with an obligation to support and a special need for parental authority and discipline. The uniqueness of the relationship, however, should not provide a privilege for negligent conduct or insulate the conduct of the parent from reasonable judicial scrutiny. Such scrutiny has not destroyed the relationship in the 25 other jurisdictions which permit child-parent suits. See, e.g., Smith v. Kaufman, 212 Va. 181, 183 S.E. 2d 190 (Va. 1971). After all, the injury to the child is no less severe when caused by a parent than a stranger.

The judgment should be reversed and the cause remanded.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    Darrell ELMORE v. STATE of Arkansas
    CR 80-34
    595 S.W. 2d 218
    Supreme Court of Arkansas
    Opinion delivered March 17, 1980

      John W. Achor, Public Defender, by: Lavona Wilson, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury fixed appellant’s punishment at five years’ imprisonment for breaking and entering and ten years’ imprisonment for second degree forgery after finding him a habitual offender. Appellant contends for reversal that the trial court “erred in allowing facially defective documents to be received into evidence for purposes of enhancing the defendant’s sentence under Ark. Stat. Ann. § 41-1001 (Repl. 1977).” Appellant questions the sufficiency of the proof with regard to only one of his four previous convictions. His name is Darrell G. Elmore, Jr. It appears he is sometimes referred to as Darrell Elmore. He argues that since one of the certified copies of a judgment introduced into evidence reflects the name Darrell Gilmore, Jr., there was no substantial evidence to support a finding as to this particular conviction.

Ark. Stat. Ann. § 41-1003 (Repl. 1977) provides that a prior conviction may “be proved by any evidence that satisfies the trier of fact beyond a reasonable doubt that the defendant was convicted.” The burden is on the state to prove the defendant’s prior convictions for the purpose of sentencing under the habitual offender statute. Leggins v. State, 267 Ark. 293, 590 S.W. 2d 22 (1979); and McConahay v. State, 257 Ark. 328, 516 S.W. 2d 887 (1974). The state, however, is not limited to the methods of proof set forth in the statute. Parker v. State, 258 Ark. 880, 529 S.W. 2d 860 (1975); and Cary v. State, 259 Ark. 510, 534 S.W. 2d 230 (1976). On appeal the test is whether there is substantial evidence from which the jury could have found that the appellant was previously convicted of the questioned felony. Leggins v. State, supra. Here in reviewing the evidence, together with the testimony of the deputy court clerk, it appears that a copy of the judgment captioned Darrell Gilmore, Jr., was accompanied by the commitment order on which the appellant’s name, Darrell G. Elmore, Jr., was spelled correctly. These two documents were identical in every respect except as noted. The case number, the attorneys for the parties, and the offense (burglary and grand larceny) were the same. The documents and the clerk’s testimony show the proceedings occurred in the same court on the same date. Appellant himself admitted on cross-examination that he was guilty of “all these convictions that were introduced.” We hold there was ample substantial evidence to support the jury’s finding.

Affirmed.


author: Darrell Hickman, Justice. John A. Fogleman, Chief Justice,

text:
    STATE of Arkansas et al v. W. L. McILROY et al
    79-320
    595 S.W. 2d 659
    Supreme Court of Arkansas
    Opinion delivered March 17, 1980
    Rehearing denied April 21, 1980

      Steve Clark, Atty. Gen., by: Paul N. Means, Asst. Atty Gen., for appellant, State of Arkansas.

      Davis, Douglas & Penix, P.A., for appellant Wayfarers Expeditions, Inc.

      Bay Fitzhugh, for appellant Ozark Society.

      Hardin, Jesson & Dawson, for appellee.

      Cockrill & McGehee, by: Howard Cockrill, for amicus curiae Franklin County Farm Bureau Federation and Arkansas Farm Bureau Federation.

      Jack Lassiter, for amicus curiae, Arkansas Canoe Club.
   Darrell Hickman, Justice.

W. L. McIlroy and his late brother’s estate, owners of 230 acres in Franklin County, sought a chancery court declaration that their rights as riparian landowners on the Mulberry River were, because the stream was not a navigable river, superior to the rights of the public.

McIlroy joined as defendants the Ozark Society, a conservationist group, and two companies that rent canoes for use on the Mulberry and other Ozark Mountain streams. The State of Arkansas, intervening, claimed the Mulberry was a navigable stream and the stream bed the property of the state, not the Mcllroys.

The Ozark Society and the other defendants generally claimed that the Mulberry was a navigable stream but that even if the court found otherwise, a public easement in the Mulberry should be recognized. The defendants also argued that the public had acquired a prescriptive easement in the river and that the act admitting Arkansas into the Union placed the Mulberry in the public domain.

The chancellor declared the Mulberry was not a navigable stream. He found the Mcllroys owned it as riparian property owners with the incidental right to prevent the public from using the stream (the Mcllroys owned land on both sides of the Mulberry.) He declined to enjoin the Ozark Society from the publication of “The Mighty Mulberry,” a brochure proclaiming the Mulberry as an excellent stream for canoeing.

The State, the Ozark Society and one of the canoe suppliers appealed. Their essential allegations of error are that the chancellor was wrong in his determination that the Mulberry was not navigable and in failing to find the existence of a public or prescriptive easement. The Arkansas Canoe Club and the Arkansas Farm Bureau Federation each filed an amicus curiae brief. The canoe club generally supported the appellants and also asked us to declare almost every other stream in Arkansas navigable. The Farm Bureau’s brief supported the claims of the appellee landowners.

As we define the term “navigable” we find the Mulberry River, as it passes through Mcllroy’s property, to be navigable. Consequently, we reverse the chancellor’s decree in that regard. Our decision precludes the necessity to discuss any of the other issues raised on appeal.

The Mulberry River, located in northwest Arkansas, heads up in the Ozark Mountains and flows in a westerly direction for about 70 miles until it joins the Arkansas River. It could best be described as an intermediate stream, smaller than the Arkansas River, the lower White and Little Red Rivers and other deep, wide rivers that have been used commercially since their discovery. But neither it is like the many small creeks and branches in Arkansas that cannot be regularly floated with canoes or flatbottomed boats for any substantial period of time during the year. The Mulberry is somewhere in between. It is a stream that for about 50 or 55 miles of its length can be floated by canoe or flatbottomed boat for at least six months of the year. Parts of it are float-able for longer periods of time. The Mulberry is a typical rock-bottomed Ozark Mountain stream, flowing with relatively clear water and populated by a variety of fish. Small-mouth bass favor such a stream and populate the Mulberry.

For most of its distance it is a series of long flat holes of water interrupted by narrower shoals. These shoals attract the canoeists. McIlroy describes the stream as following a tortuous course; canoeists find it an exciting stream testing the skill of an experienced canoeist. Watergaps, affairs of wire or boards erected across the stream to hold cattle, have at times been erected but, according to W. L. McIlroy, they go down with the first rise of water. It is not a stream easily possessed. In recent years, the Mulberry has claimed the lives of several canoeists.

Annually, since 1967, the Ozark Society has sponsored for its members one or more float trips on the Mulberry River. These trips take them through Mcllroy’s property, which is located about 23 miles Up the river from where the Mulberry enters the Arkansas. McIlroy said he had a confrontation with Ozark Society members in 1975 when about 600 people put in at a low water bridge on his property. The bridge, near Cass, serves a county road, and is undisputably a public bridge. Canoeists and fishermen have regularly used it as an access place to the river.

Although we are aware of the general characteristics of the river, we must here only determine the navigability of the Mulberry as it flows through the appellees’ property. The chancellor faced this issue and ruled the river non-navigable. We reverse his decision and hold that the Mulberry River is navigable. While our decision will be a precedent for this river and should be used by the public and landowners as such, of necessity the judgment is directed only to the parties to this lawsuit.

This is essentially a lawsuit about the river as it passes through Mcllroy’s property. W. L. McIlroy testified that just below the bridge is a long hole of water, perhaps the longest on that stretch of the river, which is about 100 feet wide; it narrows to a shoal. He said a man could wade the water almost any time of the year. He claimed the river could sometimes not be canoed for an entire year. He said dry spots usually existed for six to eight months of the year. He denied seeing a canoe before 1974. However, from 1947 to 1971, McIlroy was in California. During that time he would spend only a week or so a year in Arkansas.

The great preponderance of the evidence conflicts with Mcllroy’s estimate of the river. It is floatable for at least six months of the year. According to a pamphlet, “The Float Streams of Arkansas,” published by an Arkansas state agency, the floating season is October through June. This is for a course from a point considerably upstream from Mcllroy’s property to the river’s mouth, a distance of about 50 miles. Numerous canoeists testified they had floated the Mulberry through the Cass area, mostly in the spring of the year. It was not disputed, however, that at times, usually in the summer months, the Mulberry could not be floated.

The evidence by testimony and exhibits demonstrates conclusively that the Mulberry had been used by the public for recreational purposes for many years. It has long been used for fishing and swimming and is today also popular among canoeists.

Seven witnesses from the locality testified. All testified they had fished or swum in the Mulberry at this locality and had never sought permission nor thought they needed it. It is only necessary to summarize some of their testimony. Thelma Smee, 51, said she was born on the McIlroy property and that people had fished up and down the Mulberry all her life. She never thought of having to get permission; nor she said would anyone expect even a total stranger to get permission to fish or swim. Curtis Childers, 66, born near the Mulberry, said four generations of Childerses, never having to get permission, have swum and fished the Mulberry. He recalled canoes on the river as early as 1967. Gary Turner, 36, grew up on the Mulberry at Turner Bend. His father, who owned a grocery store on the river, started a vehicle shuttle service for canoeists in the late 1950’s or early 1960’s. He had floated the Mulberry numerous times and never sought permission or felt he needed it. The Turners are still landowners on the Mulberry.

Fasie Toris lived near the Mulberry all her life, annually floating this segment of the Mulberry with her family numerous times. She never got permission nor felt anyone needed it. She concluded, “You may own the land but you don’t own the water.”

Several state and federal officials testified. Richard Davies, Director of Arkansas State Parks and Tourism, said his agency, along with the Arkansas Game and Fish Commission, published, in 1978, a pamphlet, “The Float Streams of Arkansas,” listing 14 of Arkansas’ most popular fishing and canoeing streams. The Mulberry was touted as Arkansas’ finest white water float stream and as an excellent habitat for smallmouth bass. Davies said he considered the water open to the public. George Purvis of the Arkansas Game and Fish Commission said the Mulberry was included in the pamphlet because it was one of the top five or six streams in the state for both floaters and fishermen. He also considered it open to the public. William E. Keith, an employee of the Game and Fish Commission, said fish were stocked on the Mulberry periodically from 1952 through 1977, sometimes at the low water bridge at Cass.

Nineteen canoeists testified and three others’ testimony was offered by stipulation. All had floated the Mulberry, most seveal times; some numerous times. None had ever sought permission nor thought they needed it. No one’s right to canoe was challenged until McIlroy challenged some of them in 1978. Harold Hedges began floating it in 1952, with about 20 other people. Most canoeists had floated the Mulberry in the 60’s and 70’s. Evidence showed the Ozark Society, a conservationist group, had sponsored floats annually from 1967 to 1978.

Besides Mcllroy’s testimony, several other local landowners testified or their stipulated testimony was presented. Woody Woolsey, who had lived most of his life next to the river, said he considered the stream private. He said he first saw a canoe in 1974. George Freeman, living nearby for 50 years, said he expected people to get permission to use the stream. He considered the stream private property.

Al Wiederkehr bought land on the Mulberry in 1966 and agreed he thought the Mulberry private property. He said his land was posted. The former sheriff of Franklin County, W. D. Gober, who built a cabin on the McIlroy property, said he first saw canoes in 1974. The testimony of five others was offered to the effect that the Mulberry was private property or used only with permission.

The original government plat made of this area in 1838 was introduced and shows the “Mulberry Creek” was “meandered” by the surveyors. Meander lines are those representing the border line of a stream and such lines are considered prima facie evidence of navigability. Lutesville Sand & Gravel Co. v. McLaughlin, 181 Ark. 574, 26 S.W. 2d 892 (1930).

The facts presented prove that the Mulberry River at the point in question is capable of recreational use and has been used extensively for recreational purposes. We must now decide whether such a stream is navigable.

Determining the navigability of a stream is essentially a matter of deciding if it is public or private property. See, State v. Korrer, 127 Minn. 60, 148 N.W. 617, sup op 127 Minn. 77, 148 N.W. 1095 (1914). Navigation in fact is the standard modern test of navigability, and, as embroidered by the federal courts, controls when navigation must be defined for federal purposes — maritime jurisdiction, regulation under the Commerce Clause, and title disputes between the state and federal governments. See, Hitchings v. Del Rio Woods Recreation & Park District, 55 Cal. App. 3d 560, 127 Cal. Rptr. 830 (1976); Day v. Armstrong, 362 P. 2d 137 (Wy. 1961). Otherwise, the states may adopt their own definitions of navigability. Donnelly v. United States, 228 U.S. 243, 33 S. Ct. 449, 57 L. Ed. 820 (1913).

While navigation in fact is widely regarded as the proper test of navigability, St. Louis, Iron Mountain & Southern Railroad Co. v. Ramsey, 53 Ark. 314, 13 S.W. 931 (1890), it is a test which should not be applied too literally. For example, it has been said a stream need not be navigable at all its points or for the entire year to be navigable. Economy Light & Power Co. v. United States, 256 U.S. 113, 41 S. Ct. 409, 65 L. Ed. 847 (1921). The real issue in these cases is the definition of navigation in fact.

Arkansas has adopted the standard definition of navigability. Lutesville Sand & Gravel Co. v. McLaughlin, supra. That test, which was similar to the general test used by the federal courts, defines navigability in terms of a river’s potential for commercial usefulness; that is, whether the water could be used to remove the products of the surrounding land to another place. That definition reads:

. . . Nor is it necessary that the stream should be capable of floating boats or rafts the whole, or even the greater part of the year. Upon the other hand, it is not sufficient to impress navigable character that there may be extraordinary times of transient freshets, when boats might be floated out. For, if this were so, almost all insignificant streams would be navigable. The true criterion is the dictate of sound business common sense, and depends on the usefulness of the stream to the population of its banks, as a means of carrying off the products of their fields and forests, or bringing to them articles of merchandise. If, in its natural state, without artificial improvements, it may be prudently relied upon and used for that purpose at some seasons of the year, recurring with tolerable regularity, then in the American sense, it is navigable, although the annual time may not be very long. Products may be ready and boats prepared, and it may thus become a very great convenience and materially promote the comfort and advance the prosperity of the community. But it is evident that sudden freshets at uncertain times cannot be made available for such purposes. No prudent man could afford the expense of preparation for such events, or could trust to such uncertainty in getting to market. The result of the authorities is this, that usefulness for purposes of transportation, for rafts, boats or barges, gives navigable character, reference being had to its natural state, rather than to its average depth the year round, (citing authorities). Id. at 181 Ark. 576-77, 265 S.W. 2d 893.

Therefore, a river is legally navigable if actually navigable and actually navigable if commercially valuable.

However, in the case of Barboro v. Boyle, 119 Ark. 377, 178 S.W. 378 (1915), this Court foresaw, no doubt, that things would change in the future and that recreation would become an important interest of the people of Arkansas. The language in the Barboro case is almost prophetic. While adhering to the standard definition of navigability, with its dependence upon a commercial criterion, the Court went on to say:

It is the policy of this state to encourage the use of its water courses for any useful or beneficial purpose. There may be other public uses than the carrying on of commerce of pecuniary value. The culture of rice is being developed in this state and the waters of the lake could be used for the purpose of flooding the rice fields and for other agricultural purposes. As the population of the state increases, the banks of the lake may become more thickly populated, and the water could be used for domestic purposes. Pleasure resorts might even be built upon the banks of the lake and the water might be needed for municipal purposes. Moreover, the waters of the lake might be used to a much greater extent for boating, for pleasure, for bathing, fishing and hunting than they are now used. [Emphasis added.] Id. at 382-383, 178 S.W. 2d at 380.

Since that time no case presented to us has involved the public’s right to use a stream which has a recreational value, but lacks commercial adaptability in the traditional sense. Our definition of navigability is, therefore, a remnant of the steamboat era.

However, many other states have been presented with this same problem. Back in 1870, the Massachusetts Supreme Court found a stream navigable that could only be used for pleasure. The stream was about two feet deep at low water. The court stated:

If water is navigable for pleasure boating, it must be regarded as navigable water though no craft has ever been upon it for the purpose of trade or agriculture. Attorney General v. Woods, 108 Mass. 436, 440 (1870).

In Ohio, the court recently was faced with this problem and decided to change its definition of navigation. The Ohio court said:

We hold that the modern utilization of our water by our citizens requires that our courts, in this judicial interpretation of the navigability of such water, consider this recreational use as well as the more traditional criterion of commercial use. State, ex rel. v. Newport Concrete Co., 44 Ohio App. 2d 121, 127, 73 Ohio Ops. 2d 124, 336 L. Ed. 2d 453, 457.

Applying a “public trust” to the Little Miami River, the Ohio court found that the State of Ohio “. . . holds these waters in trust for those Ohioans who wish to use the stream for all legitimate uses, be they commercial, transportational, or recreational.” State, ex rel. v. Newport Concrete Co., supra.

Michigan reached a similar conclusion in 1974. Navigability in Michigan was significantly affected by whether logs had been, or could be, floated down a stream. That “flotable test” had been used by the Michigan court until it was confronted with the same problem that we have. Michigan readily admitted that its definition needed to be changed:

We therefore hold that members of the public have the right to navigate and to exercise the incidents of navigation in a lawful manner at any point below high water mark on waters of this state which are capable of being navigated by oar or motor propelled small craft. Kelley, ex. rel. MacMullan v. Hallden, 51 Mich. App. 176, 214 N.W. 2d 856, 864 (1974).

For examples of other states that have adopted similar definitions of navigation, see: People v. Mack, 19 Cal. App. 3d 1040, 97 Cal. Rptr. 448 (1971); Lamprey v. State, 52 Minn. 181, 53 N.W. 1139 (1893); Luscher v. Reynolds, 153 Or. 625, 56 P. 2d 1158 (1936).

Arkansas, as most states in their infancy, was mostly concerned with river traffic by steamboats or barges when cases like Lutesville, supra, were decided. We have had no case regarding recreational use of waters such as the Mulberry. It may be that our decisions did or did not anticipate such use of streams which are suitable, as the Mulberry is, for recreational use. Such use would include flatbottomed boats for fishing and canoes for floating — or both. There is no doubt that the segment of the Mulberry River that is involved in this lawsuit can be used for a substantial portion of the year for recreational purposes. Consequently, we hold that it is navigable at that place with all the incidental rights of that determination.

McIlroy and others testified that the reason they brought the lawsuit was because their privacy was being interrupted by the people who trespassed on their property, littered the stream and generally destroyed their property. We are equally disturbed with that small percentage of the public that abuses public privileges and has no respect for the property of others. Their conduct is a shame on us all. It is not disputed that riparian landowners on a navigable stream have a right to prohibit the public from crossing their property to reach such a stream. The Mcllroys’ rights in this regard are not affected by our decision. While there are laws prohibiting such misconduct, every branch of Arkansas’ government should be more aware of its duty to keep Arkansas, which is a beautiful state, a good place to live. No doubt the state cannot alone solve such a problem, it requires some individual effort of the people. Nonetheless, we can no more close a public waterway because some of those who use it annoy nearby property owners, than we could close a public highway for similar reasons.

In any event, the state sought a decision that would protect its right to this stream. With that right, which we now recognize, goes a responsibility to keep it as God made it.

Reversed.

Fogleman, C.J., concurs and dissents.

John A. Fogleman, Chief Justice,

concurring and dissenting. I cannot join in the court’s new definition of navigability, even though I concur in the reversal of the decree in this case. My disagreement is based upon the court’s departure from two overriding and interrelated legal principles, i.e., the effect of a rule of property and the vesting of property rights.

Never before in Arkansas, has determining the navigability of a stream been essentially a matter of deciding if the water is public or private property. Quite the reverse — the rights of riparian owners have depended upon the test of navigability. Although it may be rather loosely said that a body of water that has been meandered in a government survey of the stream is prima facie navigable, the question is determined under local law and not by the surveyors. In Lutesville Sand & Gravel Co. v. McLaughlin, 181 Ark. 574, 26 S.W. 2d 892, we treated this matter by reference to Harrison v. Fite, 78 C.C.A. 447, 148 F. 781 (1906), saying:

***This case involved the navigability of Big Lake and Little River in this State, and affirmed the decree of the circuit court of the United States for the Eastern District of Arkansas (148 Fed. 781) holding that those waters were not navigable. Much that was said in the opinion in that case is relevant here, and upon the question of meandered streams it was there said: “The action of the government surveyors in meandering a body of water or in surveying its bed is to be considered as evidence upon the question of its navigability or unnavigability at the time; but it is not conclusive. The surveyors are invested with no power to foreclose inquiry into the true character of the water. If the United States has disposed of lands bordering upon a meandered unnavigable water course or lake, by a patent containing no reservations, and there is nothing else indicating an intention to withhold title to the lands within the meander lines (Niles v. Cedar Point Club, 175 U.S. 300, 20 Sup. Ct. 124, 44 L. Ed. 171) it has nothing left to convey; and whether the title to the bed of the waters is in the State or passes to the grantee in the patent is determined by the local law. (Lamprey v. Minnesota, 52 Minn. 181, 53 N.W. 1139, 18 L.R.A. 679, 680, 38 Am. St. Rep. 541). ***Courts take judicial notice of the navigable character of our important rivers and inland lakes — those that are so within our common knowledge; but there are many of such insignificant capacity and doubtful utility that the question, being one of fact, is to be determined by the evidence produced, and in such case the burden of proof rests upon him who asserts the existence of the public servitude.”

The majority, however, makes too much of the statement that the fact that surveyors meandered a stream is prima facie evidence of navigability. If so, that prima facie effect seems to vanish when contrary evidence is introduced. It is quite clear that the burden of proving navigability is upon the party asserting it, and it seems that the burden of proving the public servitude is upon the party asserting its existence, regardless of the fact that the body of water is meandered in the government survey. Little Rock Miss. River & Tex. R.R. Co. v. Brooks, 39 Ark. 403, 43 Am. Rep. 277; Lutesville Sand & Gravel Co. v. McLaughlin, supra; Harrison v. Fite, supra. The effect of those decisions really is that the fact that the surveyors meandered the stream is of evidentiary value on the issue. The real significance of that fact is put in proper perspective in McGahhey v. McCollum, 207 Ark. 180, 179 S.W. 2d 661, where we said that it is merely a circumstance tending to show navigability. It is also clear that once navigable does not mean always navigable. Five Lakes Outing Club, Inc. v. Horseshoe Lake Protective Ass’n., 226 Ark. 136, 288 S.W. 2d 942; Parker v. Moore, 222 Ark. 811, 262 S.W. 2d 891.

The majority treatment of Barboro v. Boyle, supra, as a prophecy of a new test of navigability, is certainly not warranted, in view of the fact that this court fifteen years later, in Lutesville, treated that case as an application and approval of the long-standing Arkansas test of navigability. The language quoted from Barboro in the majority opinion is nothing more or less than a recitation of uses that might be made of the waters of Horseshoe Lake as a navigable stream. It followed a statement that it was the policy of this state to encourage the use of its water courses for any useful or beneficial purpose. This court certainly was not prophesying a new or modern test of navigability in Barboro, and any notion that it was is dispelled, not only by the statement in Lutesville, but by the opinion in Barboro itself, in which it was held that Horseshoe Lake was navigable within the meaning and spirit of our former decisions, because it was susceptible of use for commercial navigation, even though it had never been utilized for that purpose except at irregular intervals. In 1953, this court again recognized the viability of the test of commercial potential. Parker v. Moore, 222 Ark. 811, 262 S.W. 2d 891. We applied the Barboro test as late as 1973 in Hayes v. State, 254 Ark. 680, 496 S.W. 2d 372.

We have never, in any subsequent decision, prior to today’s, considered that Barboro did more than hold that susceptibility to use for commercial navigation, rather than a history of such use, is the true test of navigability. This was recognized in McGahhey v. McCollum, supra. In Barboro itself, we merely gave effect to the holding in Little Rock, Miss. River & Tex. R.R. Co. v. Brooks, supra, that the test was “usefulness” of the stream to the population of its banks as a means of carrying off the products of their fields and forests or bringing to them articles of merchandise.

In 1930, long after the decision in Barboro v. Boyle, 119 Ark. 377, 178 S.W. 378, we said that the law on the subject had long been at rest in this state and pointed out that the test announced in Little Rock, Miss. River & Tex. Rr. Co. v. Brooks, 39 Ark. 403, 43 Am. Rep. 277, had been consistently followed. That test, as quoted in and approved in both Lutesville Sand & Gravel Co. v. McLaughlin, 181 Ark. 574, 26 S.W. 2d 892, and Barboro v. Boyle, supra, was:

*** Nor is it any objection to the public easement for navigation, that riparian proprietors of lands, along fresh waters, own to the thread of the stream. Nor is it necessary that the stream should be capable of floating boats or rafts the whole, or even the greater part of the year. Upon the other hand, it is not sufficient to impress navigable character that there may be extraordinary times of transient freshets, when boats might be floated out. For, if this were so, almost all insignificant streams would be navigable. The true criterion is the dictate of sound business common sense, and depends on the usefulness of the stream to the population of its banks, as a means of carrying off the products of their fields and forests, or bringing to them articles of merchandise. If, in its natural state, without artificial improvements, it may be prudently relied upon and used for that purpose at some seasons of the year, recurring with tolerable regularity, then, in the American sense, it is navigable, although the annual time may not be very long. Products may be ready and boats prepared, and it may thus become a very great convenience and materially promote the comfort and advance the prosperity of the community. But it is evident that sudden freshets at uncertain times cannot be made available for such purposes. No prudent man could afford the expense of preparation for such events, or could trust to such uncertainty in getting to market. The result of the authorities is that, that usefulness for purposes of transportation, for rafts, boats, or barges, gives navigable character, reference being had to its natural state, rather than to its average depth the year round, (citing authorities).

The rights of riparian owners have always been considered as vested property rights in this state. As early as 1927, we considered that it was well settled that owners of land bordering on a nonnavigable stream, the boundary lines of which were meandered by the government survey, acquired title to the middle or thread of the stream. Kilgo v. Cook, 174 Ark. 432, 295 S.W. 355; Goforth v. Wilson, 208 Ark. 35, 184 S.W. 2d 814. The ownership in fee and control of a riparian owner extend to that part of the surface of the stream that lies above that portion of the bed owned by him. Medlock v. Galbreath, 208 Ark. 681, 187 S.W. 2d 545.

Where persons have acquired property rights upon the faith and credit of prior judicial decisions, those decisions and the rights acquired thereunder should not be disturbed. Hobbs v. Lenon, 191 Ark. 509, 87 S.W. 2d 6. At least one owner, Al Weiderkehr, acquired property on the Mulberry thinking that the waters were private, and he was justified in doing so under our prior decisions.

A settled legal principle governing the ownership and devolution of property is a rule of property. Decisions of the highest court of a state when they relate to and settle some principle of local law directly applicable to title are rules of property. Gibson v. Talley, 206 Ark. 1, 174 S.W. 2d 551. A rule of property so established should not be disturbed. Fisher v. Cowan, 205 Ark. 722, 170 S.W. 2d 603.

The test of navigability is the means of determining the property rights of riparian owners. As such it is a rule of property. To repudiate this rule of property by judicial decision will have the effect of invalidating titles that were acquired in reliance upon the rule and such a change, if desirable, should be brought about by legislation, which operates only prospectively and cannot upset titles already vested. See Eubanks v. McDonald, 225 Ark. 470, 283 S.W. 2d 166; Pyron v. Blanscet, 218 Ark. 696, 238 S.W. 2d 636. We are not free to disregard a rule of property. Bishop v. Williams, 221 Ark. 617, 255 S.W. 2d 171. Where our holdings have become a rule of property, they must not be overruled retroactively or retrospectively. O’Brien v. Atlas Finance Co., 223 Ark. 176, 264 S.W. 2d 839; Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S.W. 2d 973.

Even a legislative enactment cannot destroy vested rights which riparian owners have in a nonnavigable stream. State v. Brace, 76 N.D. 314, 36 N.W. 2d 330 (1949); 65 CJS Navigable Waters, § 76b, p. 78. And the legislature could not by a retroactive definition of navigability transfer to the state a property right either in a body of water or the bed thereof that has been previously acquired by a private owner. Ozark-Mahoning Co. v. State, 76 N.D. 464, 37 N.W. 2d 488 (1949); State v. Brace, supra; 65 CJS, Navigable Waters, § 7b, 79. To do so without compensation is unthinkable. Ozark-Mahoning Co. v. State, supra; State v. Brace, supra; 78 Am. Jur. 2d 517, § 68 and cases cited. See 65 CJS, Navigable Waters, § 7b, 78; Downes v. Crosby Chemicals, Inc., 234 So. 2d 916 (Miss., 1970). What this court said over a century ago in Martin Ex Parte, 13 Ark. 198, when we had no specific constitutional prohibition against the taking of private property without just compensation, is particularly appropriate here, viz:

*** The right of the citizen to acquire, possess and protect property, thus guaranteed to all by the fundamental law, being a limitation imposed by the people upon the government of their own creation, and designed to protect the weak against the strong, the minority against the majority, would be of little avail and but an empty sound, if the legislative department possesses the power to divest him of it without adequate compensation, through caprice, or even in the exercise of honest but misguided judgment, or, upon that most dangerous of all pretences, for State reasons, and the policy of promoting what may be deemed the public good.

The adoption of a so-called modern test changes a rule of property and apparently divests titles that have been vested under the prior test. In Arkansas, unlike communist states, it is the right of private property, not the rights of the public, that rises above constitutional sanction. Art. 2, § 22, Constitution of Arkansas. This is one of the fundamental distinctions between our system and the communistic form of government and its focus is directed to public rights asserted in streams. Downes v. Crosby Chemicals, Inc., supra. The statement that the right of property is before and higher than any constitutional sanction is more than a slogan. It has found application in our decisions. See City of Fayetteville v. S & H, Inc., 261 Ark. 148, 547 S.W. 2d 94; Arkansas State Highway Com’n. v. Turk’s Auto Corp., Inc., 254 Ark. 67, 491 S.W. 2d 387; Blundell v. City of West Helena, 258 Ark. 123, 522 S.W. 2d 661; Poole v. State, 244 Ark. 1222, 428 S.W. 2d 628; City of Little Rock v. Raines, 241 Ark. 1071, 411 S.W. 2d 486; Sheet Metal Workers Int. Ass’n. v. E. W. Daniels Plumbing & Heating Co., 223 Ark. 48, 264 S.W. 2d 597; Young v. Gurdon, 169 Ark. 399, 275 S.W. 890. The prohibition against the taking, appropriation or damaging of private property without just compensation is binding on all branches of government. The judicial branch is no more vested with the power to take, appropriate or damage the established property rights of individuals without compensating them than is the executive branch. And yet the apparent effect of this decision accomplishes that very result. I submit that, insofar as titles vested under the test of navigability applied up until this very date, the change of the test is a violation of due process of law under both the state and federal constitutions, as well as of Art. 2, §§22 and 23 of the Arkansas constitution. Judicial submission to public clamor is not in keeping with constitutional government.

Less than four months ago, the Supreme Court of the United States held that the government could not give the public a right of access, or prevent the owners from denying public access, to waters which had been private property under state law, without paying just compensation to the owners, even though the character of the waters had been changed from non-navigable to navigable. Kaiser Aetna v. United States, 444 U.S. 164, 100 S. Ct. 383, 62 L. Ed. 2d 332 (1979). What we said in Shellnutt v. Arkansas State Game & Fish Com’n., 222 Ark. 25, 258 S.W. 2d 570, applies here, viz:

It is not necessary that the property should be completely taken in order to bring the case within the protection of this Constitutional guaranty. ***

The matter had been put in sharp focus in Meriwether Sand & Gravel Co. v. State, 181 Ark. 216, 26 S.W. 2d 57, where we said:

*** Riparian rights inhere in the owner of the soil and are part and parcel of the land itself, and are vested and valuable rights which no more may be destroyed or impaired than any other part of a freehold.

It is distressing to me that the concern of this court for private property rights so recently and forcibly applied in such cases as Loyd v. Southwest Arkansas Utilities Corp., 264 Ark. 818, 580 S.W. 2d 935, and Robinson v. Arkansas State Game & Fish Com’n., 263 Ark. 462, 565 S.W. 2d 433, seems to have stopped at the banks of the Mulberry River (Creek?).

Acquisition by prescription, or adverse possession, cannot be based upon hunting and fishing (or presumably swimming) upon the stream. This question was put to rest in State ex rel Thompson v. Parker, 132 Ark. 316, 200 S.W. 1014, where we said:

*** Occasional or oft-repeated incursion upon the lands of another for the purpose of hunting and fishing does not signify any intention to appropriate the lands to one’s own use. The act of hunting and fishing on the unenclosed lands of another is not an act of possession. It does not denote any purpose to hold the same adversely, and thereby exclude the owner from dominion over his property, and it does not have any such effect. ***

See also, Barboro v. Boyle, 119 Ark. 377, 178 S.W. 378; Medlock v. Galbreath, 208 Ark. 681, 187 S.W. 2d 545. On the other hand, any use of the water of a nonnavigable stream for boating purposes by one other than the owner is an infringement of the rights of the owner. See Medlock v. Galbreath, supra.

I find that the record discloses that the public has acquired an easement to use of the Mulberry River across the lands of the appellees by prescription just as fully as they would have acquired an easement for vehicular traffic across their riparian lands by adverse use for more than seven years after appellees should have known that the public use was adverse. That such an easement may be acquired by prescription was recognized in Buffalo River Conservation & Recreation Council v. National Park Service, 558 F. 2d 1342 (8 Cir., 1977), in reliance upon Clinton Chamber of Commerce v. Jacobs, 212 Ark. 776, 207 S.W. 2d 616 (1948); Howard v. State, 47 Ark. 431, 2 S.W. 331; Patton v. State, 50 Ark. 53, 6 S.W. 227; McClain [McLain] v. Keel, 135 Ark. 496, 205 S.W. 894.

In 1967, W. R. McIlroy and his brother Grady, acquired the farm located at the low water bridge on Mulberry Creek from their father who died July 9, 1971. The farm had been owned by someone in their immediate family since 1927. A crop has been planted on it each spring. Cattle have been kept on the farm and a portion of it is in pasture. There were three houses and there were sharecroppers who lived on the land. A man named James Jones presently lives in a house on the farm that is over 100 years old. Activity on the river can be observed from portions of the McIlroy fields.

There have been at least one, sometimes two or three, scheduled floats on the Mulberry River conducted by the Ozark Society every year beginning with the summer of 1967 and extending through the winter of 1977-78. Harry Crisson had floated through the McIlroy property in April of each of the years 1965, 1967, 1972 and 1973. In 1965, there were 19 or 20 people on the same trip. Nancy Jack, a freelance writer, had floated through the property five times. On the first trip, which was in 1964, 20 people were with her. On the second trip in May, 1965, 19 people were with her. In 1967, there were about 26 people on the trip. Curtis Childers, who said he had been on the Mulberry a thousand times in his 66 years, testified that people commonly used the Mulberry. He recalled boating on the Mulberry from the “thirties” until the present. He first began noticing canoes on the river in 1967 and had seen them every year since then. At first there would be one or two on one day and three or four the next, but there are a “bunch more” now. He felt that it was the tradition of the area to float without permission. Donald Rice of Altus had floated through the property two or three times a year beginning in 1960 or 1961. William E. Keith, Jr., Chief of the Fisheries Divion of the Arkansas Game & Fish Commission, testified that fish had been “stocked” periodically at the low water bridge from 1952 to 1977. Douglas Tims first floated through the McIlroy property in April, 1972, and had floated it about 30 times a year since then. Arthur Foy Evans, a Gravette dentist, first floated through the McIlroy property in 1967 and, except for two years that he was in military service, floated the river through the property every year thereafter. Bob McCoy had floated through the property four or five times during the past eight years. Harold Hedges of Concord kepi logs of his floats. He had floated through the property on the following dates: Oct. 20 and 21, 1952; April 19, 1964; April 3 and 4, 1965; May 31, 1965; April 29 and 30, 1967; April 28 and 29, 1969. On the last date, he had lead a party of 20 or 25 people on a three-day Mulberry excusión at the request of the Forest Service. Leonard Heman had floated through the property on May 31, 1965 and in April, 1967, with 10 to 20 persons. Norman C. Preston had floated through the property in April, 1964 and May, 1965. There were 12 other people with him on the first trip and 23 on the second. Ray Fuller floated through the property in 1967 and once each spring over the next nine years. Melvin Smith floated through the property in 1964. His next trip was in April, 1965, as one of 18 people. In May of 1967, he again floated through the property in a party of eight. His next trip was in 1972. He said that in 1973 he was one of a party of 11 people who floated through the property. In 1975, he was in a float party of 30 people in 16 canoes. Dr. John Ewing first floated through the property in May, 1965 and averaged two trips a year until five years prior to trial, when he moved to Ozark and took the float trips more frequently. Fasie Torix had floated through the property 10 to 20 times per year over the past 30 years. Jesse Jones, who had lived along the river for 13 years, first saw a canoe on the river in the early 1950’s. He said that canoes had been coming through since 1966, and that the canoe traffic had increased every year. Joseph Acuff had a record of 12 float trips spanning the years 1965 through 1976. On most of the trips, the low water bridge was either the “put-in” point or the “take-out” point.

Gary Turner had floated through the property several times a year. A shuttle service for canoeists was started by his father at the father’s grocery store and service station in the late 1950’s or early 1960’s. The operation continued until a year or two before the trial. Over the period of time, the Turners shuttled over 1000 cars.

David Thrasher, a Fayetteville engineer who is president of the Arkansas Canoe Club, first floated through the property in 1970, and has averaged two or three trips per year since then. Stewart Noland was a member of parties numbering 2 to 12 persons which had floated through the property nearly every spring beginning in 1971. He had taken 2 such canoe trips in the fall.

The notoriety of the use made of the stream is evidenced by the publication of “The Float Streams of Arkansas,” beginning in the spring of 1978 by the Arkansas Game & Fish Commission and the Arkansas Department of Parks & Tourism, listing the Mulberry River for a distance of 55 miles from the Arkansas River as one of those streams.

The chancellor held that canoeing constituted only an occasional trespass and that the right to use the stream had been asserted or brought home to the landowner within the period of limitations. I respectfully disagree. It is true that McElroy and others denied knowing of the use being made of the stream for as long as 7 years. The absence of W. M. McIlroy from the area during the early use of the stream by canoeists will explain his professed ignorance of the facts to some extent. There is evidence from which it might be said that the use which began about 1952 was permissive. That use steadily increased, and must have been obvious to anyone who observed the stream from the Mcllroy farm. A use that originates as a permissive use may be treated as adverse and becomes an absolute right to a passageway, not only when it continues openly for 7 years after the landowner has knowledge that the use is adverse to his interest, but also when the usage continues for 7 years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse. Weigel v. Cooper, 245 Ark. 912, 436 S.W. 2d 85; McGill v. Miller, 172 Ark. 390, 288 S.W. 932; Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W. 2d 281, 46 ALR 2d 1135. I think that it was shown by a clear preponderance of the evidence that the owners of the Mcllroy lands should be presumed to have known that a passageway on the Mulberry River was being used by the public adversely to them and under a claim of right.

Since I cannot agree to the taking and appropriating by judicial fiat of vested property rights of riparian owners on streams which are nonnavigable under the test applied in Arkansas for a century, I must dissent from the majority opinion, but I would reverse the decree on the ground that a prescriptive easement has been acquired by adverse use.

        United States v. Wilson & Co., 214 F. 630 (E.D. Ark.) aff'd. sub nom. Wilson & Co. v. United States, 142 C.C.A. 351, 227 F. 827 (8 Cir.), aff'd 245 U.S. 24, 38 S. Ct. 21, 62 L. Ed. 128 (1917).

       Under this Constitutional guaranty, we have held that dumping sewage into a stream and polluting the waters thereof was a damage to a lower riparian owner, and such owner was entitled to recover damages, under the quoted Constitutional provisions. See McLaughlin v. Hope, 107 Ark. 442, 155 S.W. 910, 47 L.R.A., N.S. 137. Again, we held that the pollution of the air over private property by offensive odors escaping from a sewer tank, was a damage to adjacent residential property, within the quoted Constitutional provision. See Sewer Dist. v. Fiscus, 128 Ark. 250, 193 S.W. 521, L.R.A. 1917D, 682.


author: Darrell Hickman, Justice. John I. Purtle, Justice, John A. Fogleman, Chief Justice,

text:
    Daniel Albert DAIGGER, Donna Sue DAIGGER, & David Burl TAYLOR v. STATE of Arkansas
    CR 80-31
    595 S.W. 2d 653
    Supreme Court of Arkansas
    Opinion delivered March 17, 1980
    Rehearing denied April 14, 1980

      McArthur & Lassiter, P.A., for appellants.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Daniel Albert Daigger, Donna Sue Daigger, and David Burl Taylor were convicted in Pulaski County Circuit Court of delivering LSD. Daniel Albert Daigger received a ten-year sentence. Donna Sue Daigger and Taylor received ten-year sentences with five years suspended. Their appeal raises three issues. First, they argue the trial court should have granted them a continuance so they could find and call as a witness, Jimmy Cahill, a police informant. Second, appellants argue the police illegally searched both the Daigger vehicle and Taylor. Third, Taylor alleges there was not enough evidence to convict him.

On appeal, the facts are not seriously disputed. Cahill introduced police undercover agents to Taylor at a bowling alley. The officers tried to buy some LSD from Taylor, but they could not agree on a price. Taylor took them to the Daiggers. A sale was made. Each of the Daiggers received $20.00. In response to a radio message from the officers making the purchase, another officer in the area arrested and searched Taylor shortly after the Daiggers left. In the meantime, a call was made to other policemen to stop the Daiggers’ vehicle and arrest the Daiggers. They were arrested and their vehicle was searched. A search of Mrs. Daigger’s purse, which was found between the front seats of the vehicle, uncovered LSD.

On the day the trial began, the appellants made an oral motion for a continuance to allow the State to furnish them Cahill’s address. The trial judge denied the motion. We affirm his decision. A continuance need only be granted upon a showing of good cause. Rules of Crim. Proc., Rule 27.3. A denial of a continuance will not be reversed absent a clear abuse of discretion. Russell & Davis v. State, 262 Ark. 447, 559 S.W.2d 7 (1977). We find none here. The appellants knew Cahill’s name and had ample opportunity, either through their own investigation or a specific discovery request, to find him before the trial began.

Neither do we believe the trial judge erred in admitting evidence, specifically the contents of Donna Sue Daigger’s purse, found in the search of her vehicle. This kind of search is authorized by Rules of Crim. Proc., Rule 12.4:

(a) If, at the time of the arrest, the accused is in a vehicle or in the immediate vicinity of a vehicle of which he is in apparent control, and if the circumstances of the arrest justify a reasonable belief on the part of the arresting officer that the vehicle contains things which are connected with the offense for which the arrest is made, the arresting officer may search the vehicle for such things and seize any things subject to seizure and discovered in the course of the search.
(b) The search of a vehicle pursuant to this rule shall only be made contemporaneously with the arrest or as soon thereafter as is reasonably practicable.

The appellants, citing Sanders v. State, 262 Ark. 595, 559 S.W. 2d 704 (1977), aff'd 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979), argue the search of the purse violated the Fourth Amendment’s prohibition of unreasonable searches and seizures. In Sanders we held a suitcase, which was seized from the locked trunk of a taxicab could not be searched. Sanders is not directly on point. The search here was of a purse found between the two front seats inside the vehicle. We compare this search favorably with a search which we upheld in the case of Sumlin v. State, 266 Ark. 709, 587 S.W. 2d 571 (1979). More importantly, we believe this particular search, conducted immediately after the Daiggers had made an illegal drug sale to the officers, and made contemporaneously with their arrest, was not unreasonable.

We do not decide the propriety of the search of Taylor. The conduct ascribed to him simply cannot, under our cases, be considered delivery of LSD. We held in Bowles v. State, 265 Ark. 457, 579 S.W.2d 596 (1979), that a man who simply introduced the buyer to the seller was not guilty of delivery. The middle man must take a more active part to be a principal or even an accomplice. For example, in Curry v. State, 258 Ark. 528, 527 S.W.2d 902 (1975), the conviction of such an individual was upheld. There Curry took the money and returned with the drugs. Here we affirm the Daiggers’ conviction but reverse Taylor’s and dismiss the charges against him.

Affirmed in part; reversed in part.

Purtle, J., concurs.

Fogleman, C.J., and Mays, J., dissent.

John I. Purtle, Justice,

concurring. I concur with the majority completely as to the opinion as it relates to appellant, David Burl Taylor. I concur with the result as to the Daiggers but wish to state my reasons in slightly different terms.

First, the majority properly cites and interprets the Rules, of Crim. Proc., Rule 12.4(a) and (b), for convenience to the reader is set out as follows:

(a) If, at the time of the arrest, the accused is in a vehicle or in the immediate vicinity of a vehicle of which he is in apparent control, and if the circumstances of the arrest justify a reasonable belief on the part of the arresting officer that the vehicle contains things which are connected with the offense for which the arrest is made, the arresting officer may search the vehicle for such things and seize any things subject to seizure and discovered in the course of the search.
(b) The search of a vehicle pursuant to this rule shall only be made contemporaneously with the arrest or as soon thereafter as is reasonably practicable.

Daigger was in apparent control of the vehicle. The officers had reasonable belief that the vehicle contained things connected with the offense for which the arrest was made. The officers had paid for the LSD with marked bills, and they were in sight of the Daiggers until the arrest. The purse was in the passenger compartment of the vehicle in plain view of the arresting officers, and the search was made contemporaneously with the arrest. These facts fit squarely into the plain wording of the above rule.

In Sanders v. State, 262 Ark. 595, 559 S.W.2d 704 (1977) aff'd 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979), the suitcase searched was found in the trunk of the vehicle after the vehicle was parked. I believe both this Court and the United States Supreme Court held such a search was not a “vehicle exception” search. We recently reached the same result in Moore v. State, 268 Ark. 191, 594 S.W.2d 245 (1980), wherein we held a shaving kit located in a hidden place, which took about 20 minutes to locate, was not a search within the “automobile exception.” In Moore the vehicle had been secured, and the accused was handcuffed. and was in another vehicle at the time of the search. There were no exigent circumstances in either Sanders or Moore.

In the present case, the officers had concrete facts to base their belief that this vehicle contained not only the marked money but also additional LSD. The present case is similar to the fact situation in Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979), in which there was a very dangerous fact situation confronting the officers. Also, the purse was in the passenger compartment of the vehicle in plain view of the officers.

It appears to me when the search of an automobile is contemporaneous with the arrest and the arresting officers have facts upon which to reasonably believe things connected with the offense are contained in the passenger compartment of the vehicle, the officers are authorized to look into the vehicle. If the things which they have probable cause, based upon facts known to them, to believe are in the vehicle are seen by them, the search is reasonable. However, when the vehicle is secured or the container to be searched is within the exclusive control of the arresting authorities and there are no exigent circumstances and no danger of harm to anyone or loss of the items sought, a warrant is required. If this reasoning is applied, I do not see any conflict between Sanders, supra, Moore, supra, and the case before us.

For the above reasons I concur with the majority opinion.

John A. Fogleman, Chief Justice,

concurring in part, dissenting in part. It is extremely hard to have any sympathy for a “dope peddler.” That is not what is involved here. The very foundation of this nation rests upon the theory of equality before the law. This theory has been engraved in our constitutions. Constitution of the United States, Amendment Fourteen; Constitution of Arkansas, Art. 2, §§ 2 and 3. The principle was stated in our constitution of 1868, which became effective before the Fourteenth Amendment to the United States Constitution was declared to have been ratified. If equality before the law is to be meaningful, or actually if it is to be preserved, the “dope peddler” must be afforded the same constitutional protections available to citizens in the highest and most respected positions. Otherwise, erosion will wash the principle away, just as it will eventually wash away the hardest stone.

A basic constitutional right is the right to be free from unreasonable searches and seizures. Constitution of the United States, Amendment Four; Constitution of Arkansas, Art. 2, § 15. The provisions are stated in identical language, i.e., “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, . . .” It is notable that the right is not restricted to some people or to law-abiding people. It is also significant that all people, including law violators, have the same right to be secure in their effects as they have in their persons and in their homes. See State v. Porter, 53 Ohio Misc. 25, 373 N.E.2d 1296 (1977). Donna Sue Daigger had the right to be secure in her person and effects against an unreasonable search. And the Fourth Amendment protection is broad enough to afford protection to contraband. United States v. Peisner, 311 F.2d 94, 5 ALR 3d 1196 (4 Cir., 1962).

There is a rebuttable presumption that a search without a warrant is an unreasonable search. Sanders v. State, 262 Ark. 595, 559 S.W.2d 704, aff'd. sub nom. Arkansas v. State, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235. The burden is upon the state to show that a search without a warrant was reasonable. Rowland v. State, 262 Ark. 783, 561 S.W.2d 304; Asher v. City of Little Rock, 248 Ark. 96, 449 S.W.2d 933. This means that the state must show by a preponderance of the evidence that the facts and circumstances surrounding the search brought it within the scope of a recognized exception to the requirement of a warrant for a search or seizure. See Rowland v. State, supra. The majority seeks to justify this search as a lawful search incident to an arrest, equating it with an automobile search. It was not an automobile search. The only question before us is the validity of the search of Donna Sue Daigger’s purse. Sanders v. State, supra. In Sanders, we said:

To paraphrase the United States Supreme Court’s observation in United States v. Chadwick, [433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977)] supra, the factors which diminish the privacy aspects of an automobile do not apply to appellant’s suitcase. Luggage contents are not open to public view, except as a condition to a border entry or common carrier travel; nor is luggage subject to regular inspections and official scrutiny on a continuing basis. Unlike an automobile, whose primary function is transportation, luggage is intended as a repository of personal effects. In sum, a person’s expectations of privacy in personal luggage are substantially greater than in an automobile.
Nor does the suitcase’s mobility justify dispensing with the added protections of the Warrant Clause. Once the Little Rock police had seized appellant’s suitcase from the trunk of the taxicab and had the suitcase under their exclusive control, there was not the slightest danger that the suitcase or its contents could have been removed before a valid search warrant could be obtained. The initial seizure of appellant’s suitcase, the validity of which appellant does not contest, was sufficient to guard against any risk that evidence might be lost. With the suitcase safely immobolized, it was unreasonable to undertake the additional and greater intrusion of a search without a warrant.

Detectives Sylvester and Hutchinson stopped the Daigger vehicle, at the behest of Detective Fulks, at or near the Crestwood Apartments in Little Rock. Although there was some pretense of arresting Fulks and Detective Lowery, they were present at the scene of the arrest. The vehicle was a van. Sylvester searched both Daiggers. In searching the vehicle, Sylvester found Mrs. Daigger’s pocketbook or wallet. It was lying on the console between the driver’s seat and the passenger’s seat. He took some money, the serial numbers of which corresponded with that used by Fulks and Lowery in making the purchase from the Daiggers. He took some LSD from the wallet. According to Sylvester, the Daiggers “were clearly under police control” at the time he searched the van. There was simply no evidence of any exigent circumstances.

Neither the existence of probable cause nor the reasonableness of the search itself is a substitute for a warrant where a reasonable expectation of privacy is invaded by the search, at least in the absence of exigent circumstances. Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235. See also, Freeman v. State, 258 Ark. 617, 527 S.W.2d 909. The basic and essential purpose of the requirement of a search warrant is to protect the individual against unreasonable governmental intrusions into his privacy, whenever and wherever his expectation of privacy is legitimate. Hosto v. Brickell, 265 Ark. 147, 577 S.W.2d 401. One of the most important factors to be considered in determining the reasonableness of a search is the existence, extent and legitimacy of the citizen’s right to privacy under the circumstances. Hosto v. Brickell, supra.

We have recognized Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685, rehearing denied, 396 U.S. 869, 90 S. Ct. 36, 24 L. Ed. 2d 124 (1969), as the leading guideline provided by the United States Supreme Court on the permissible scope of a search incident to a lawful arrest. See Steel v. State, 248 Ark. 159, 450 S.W.2d 545. According to that guideline, the search incident to a lawful arrest cannot go beyond that area from which the arrested persons might have obtained a weapon or destructible evidence. Freeman v. State, 258 Ark. 617, 527 S.W.2d 909, Steel v. State, supra; Moore v. State, 261 Ark. 274, 551 S.W.2d 185. In Shingleton v. State, 39 Md. App. 527, 387 A. 2d 1134 (1978), a case strikingly similar to both this case and Sanders, the Maryland court put the impact of United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977) in proper perspective. That court said:

When the van was stopped by the police, the occupants were removed from the vehicle and placed under arrest. A quick warrantless search was conducted on the spot. The State Police discovered the briefcase and opened it. As we read Chadwick, the contents of the brief case were protected by the cloak of the Fourth Amendment. Plainly, a briefcase is more like luggage, about which Chadwick holds that one has a right of expectation of privacy, than like a motor vehicle, a highly mobile object, usually open to view and in which one may reasonably expect less privacy. Moreover, there is no testimony of any emergency requiring the warrantless search of the briefcase. The officers did not express any fear or apprehension over weapons or explosives. The only remaining justification for the intrusion into the briefcase was the possibility that the contents would be destroyed by the two (2) appellants who were arrested at the scene. Those two (2), Martin and Shingleton, were in custody and, inferentially, unable or incapable of destroying the briefcase’s contents. The sum and substance of the facts being that, in this case, no justification existed for the warrantless search of the briefcase. Chadwick v. United States, supra; Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964).
We are mindful of a number of cases seeming to justify such a search as that present in this matter on the theorem of search incident to an arrest. Cady v. Dum browski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Chambers v. Maroney, supra; Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). See also Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Mobley v. State, 270 Md. 76, 310 A.2d 803 (1973), aff'd. King v. State, 16 Md. App. 546, 298 A.2d 446 (1973). The rationale for upholding warrantless searches made incident to arrest is the safeguarding of the arresting officers or preventing the loss of evidence. That proposition evaporates in view of the separation of the briefcase from the arrestees. Because, in the case sub judice, the clear and present danger to the police and the likelihood of destruction of the evidence were dispelled by the separation of the appellants, Martin and Shingleton, from the van and, obviously, from the briefcase, there was no need for a warrantless search of the briefcase. United States v. Chadwick, supra; Preston v. United States, supra.
Under the circumstances of this case, the police should have obtained a search warrant before opening and searching the briefcase, and the trial court erred in admitting the contents of the case into evidence.
Although there was ample authority, as Mr. Justice Blackmun observed in his dissent in Chadwick, for the position that a briefcase in a car may be searched as part of the “automobile exception” expounded by Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925); see e.g., United States v. Tramunti, 513 F.2d 1087 (2d Cir. 1975) (suitcase in back seat of a car); United States v. Issod, 508 F.2d 990 (7th Cir. 1974), cert. denied, 421 U.S. 916, 95 S. Ct. 1578, 43 L. Ed. 2d 783 (1975) (trunk in railroad station); United States v. Soriano, 497 F. 2d 147 (5th Cir. 1974) (en banc) (suitcases in trunk of taxicab); United States v. Evans, 481 F.2d 990 (9th Cir. 1973) (footlocker in trunk of automobile), nevertheless, to the extent those cases conflict with Chadwick, they are implicitly laid to rest. The law is now clear that the police, having gained “exclusive control” of the briefcase and eliminated by space and time any possibility of the arrestee’s “gaining] access to the property to seize a weapon or destroy evidence,” may not then conduct a warrantless search of that property under the guise of a search incident to the arrest. United States v. Chadwick, 433 U.S. at 15, 97 S. Ct. at 2485, 53 L. Ed. 2d at 551; Preston v. United States, supra. Hence, the briefcase and its contents should have been suppressed and it is reversible error for the trial judge not to have excluded that illegally seized evidence.

This case is virtually identical to Sanders v. Arkansas, supra, aff'd. as Arkansas v. Sanders, supra, in that the police were in control of the automobile and its occupants and there was no danger that the pocketbook (rather than suitcase) or its contents would be rendered unavailable to due legal process. Here, as there, the police were justified in stopping the automobile, searching it and seizing the pocketbook. The question here, as there, was whether the police, rather than searching the pocketbook without a warrant, should have taken it to the police station, where they were taking the persons arrested anyway, and there obtained a warrant to search it. The pocketbook was in the exclusive control of the police. Its mobility was destroyed by its seizure. The appellants had only a slightly better chance of retrieving the pocketbook and destroying the incriminating evidence than any member of this court did.

Any person who has ever observed or participated in the emptying of a pocketbook could not escape the conclusion that the expectation of privacy in that personal effect was very great indeed. In Sanders, the United States Supreme Court had this to say on the subject:

Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar’s tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. ***

We have heretofore recognized that there are containers in which the owner does not have an expectation of privacy when we held that a toolbox was one, because it is not a repository of personal effects. Wyss v. State, 262 Ark. 502, 558 S.W.2d 141. There is a lot of difference between a toolbox and a pocketbook. It seems to me that one would expect more privacy in his pocketbook than in either his luggage or his toolbox. Certainly a pocketbook is a repository of personal effects.

I distinguish the circumstances here from those in Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571. Ruth Sumlin had effected a jailbreak at 10:00 p.m. one evening, forcing a jailer to release five prisoners, among which was her husband, at the point of two weapons, a pistol and a knife. Thus, it was known that she was armed. She later fired a weapon at two of the escapees who had left the jail with her and her husband. She surrendered to the police by leaving the automobile her husband was driving and running to a police car. Her purse was seized at the time of her arrest and taken to the jail where she was held. Both the policeman arresting Ruth Sumlin and the Chief of the Fordyce Police in whose custody she was placed, looked in the purse for weapons. Sheriff Joe Pennington, to whose custody she was transferred early in the morning after the escape, properly inventoried the contents of the purse. He found a knife, the murder victim’s billfold and an incriminating letter. The knife had apparently been found by the police officers who first looked into the purse, and it was readily visible and its presence known. The sheriff opened the letter in order to try to get information concerning the whereabouts of the other escapees.

The lone police officer who made the arrest there did not have control of the situation as the police did here. As a matter of fact, Ruth Sumlin’s husband tried to escape after the vehicle he was driving had been stopped by the police officer. He rammed the policeman’s, car with the stolen automobile he was driving and had to be subdued. The officer’s opening the purse to search for weapons was, under the circumstances, an act of wisdom and justified as incident to the arrest. It must be remembered that three of the escapees were unaccounted for after the Sumlins had been arrested. A search of the purse for weapons at the Fordyce jail where she was taken was proper, even if the chief of police did not make an inventory. The sheriff was much concerned about the whereabouts of the other escapees and was justified in considering the situation as an emergency. When the circumstances of the arrest, the taking of custody at places of incarceration, the propriety of an inventory by the sheriff and the exigencies of the situation are considered, the search of the purse there was justified. None of these conditions existed in this case.

I would reverse the judgment as to Donna Sue Daigger, but I agree that the judgment should be affirmed as to Daniel Albert Daigger and reversed as to Taylor.

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


author: John I. Purtle, Justice.

text:
    Lyndell Ray SCROGGINS v. STATE of Arkansas
    CR 79-218
    595 S.W. 2d 219
    Supreme Court of Arkansas
    Opinion delivered March 17, 1980

      John W. Achor, Public Defender, by; James H. Phillips, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted of aggravated robbery in violation of Ark. Stat. Ann. § 41-2102 (Repl. 1977). He bases his appeal upon the denial of his motion to suppress evidence which he claims was the result of an illegal warrantless search of his vehicle. He was sentenced to 35 years as a habitual offender.

The only question on appeal is whether the trial court erred in overruling the motion to suppress. We think the trial court was correct.

The facts are not materially in dispute. About 8:00 p.m. on March 17, 1979, the Payless Shoe Store on Asher Avenue in Little Rock was robbed. A few minutes later the police received a report that the blue Chevrolet pickup, bearing Arkansas licence HUY 529, used as the getaway vehicle was parked on a parking lot at the Amble Inn. The officers arrived at the parking lot at 8:07 p.m. Upon inquiry, it was determined that appellant and another man arrived in the vehicle and were playing pool inside the Amble Inn. The officers approached the two men and took them outside where they were searched and arrested.

The only testimony presented at the hearing on the motion to suppress was that of Detective John Hutchinson of the Little Rock Police Department. His undisputed testimony reveals appellant was given his Miranda warning, but he was not informed that he had the right to refuse consent to the search of his vehicle. The detective stated he sought permission to search the vehicle which was parked and locked. In answer to the officer’s request to search the truck the appellant replied, “I don’t care. Go ahead.” No other evidence was presented at the hearing on the motion to suppress.

There are some situations in which a warrantless search may be justified. First, a search incident to arrest, Gordan v. State, 259 Ark. 134, 529 S.W.2d 330 (1976); second, the so-called “automobile exception,” Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973); third, when consent is given. Harvey v. State, 261 Ark. 47, 545 S.W.2d 913 (1977). Knowledge of the right to refuse consent to search is not a requirement to prove the voluntariness of consent, McGuire v. State, 265 Ark. 621, 580 S.W.2d 198 (1979). Specifically, a Miranda warning is not required before a warrantless search is conducted, Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

We recognize that the state has the burden of proving by clear and positive testimony that consent to a search was freely and voluntarily given and there was no actual or implied duress or coercion, Rodriquez v. State, 262 Ark. 659, 559 S.W.2d 925 (1978). In the present case, we feel that the uncontradicted statement of Officer Hutchinson meets this requirement. Therefore, we uphold the trial court in overruling the motion to suppress.

Affirmed.


author: John F. Stroud, Justice.

text:
    Byron CULPEPPER v. STATE of Arkansas
    CR 80-35
    595 S.W. 2d 220
    Supreme Court of Arkansas
    Opinion delivered March 17, 1980

      John W. Achor, Public Defender, by: William H. Patterson, Jr., Chief Appellate Attorney, for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   John F. Stroud, Justice.

Appellant entered a plea of guilty on January 22, 1979, to the charge of burglary. The court sentenced appellant to “five (5) years suspended with three (3) years probation; all conditioned on good behavior, steady employment and support of his family,” as reflected by judgment entered on the same date. Four months after appellant was sentenced, the State petitioned the court to revoke his probated sentence on the grounds that he had violated the terms of his probation by committing the offense of aggravated robbery. On June 6, 1979, the court granted the petition to revoke the suspended and probated sentence entered on January 22 and sentenced appellant to 15 years imprisonment. Alleging that the trial court erred in increasing his sentence from 5 years to 15 years, appellant brings this appeal.

The appellant alleges that the law is unclear and confusing concerning sentencing since the Criminal Code was adopted and that he was denied due process by failure of the trial court to adequately advise him of,the potential maximum sentence if he violated the terms of his suspended sentence or probation. We acknowledge that when the Criminal Code became effective on January 1, 1976, the failure of the Act to expressly repeal conflicting previous statutes has led to considerable confusion in this area of our criminal law. Prior to the adoption of the Criminal Code, the trial court, in addition to authority to place a defendant on probation, clearly had authority to either:

(1) Suspend execution of jail sentences pursuant to Ark. Stat. Ann. § 43-2326 (Repl. 1977):
Hereafter, all courts of record in this State shall have the authority, to suspend the execution of jail sentences or the imposition of fines, or both, in all criminal cases, pending before said courts.
or
(2) Postpone pronouncement of final sentence and judgment pursuant to Ark. Stat. Ann. § 43-2324 (Repl. 1977):
Whenever, in criminal trials in all courts of record, a plea of guilty shall have been accepted or a verdict of guilty shall have been rendered, the Judge trying the case shall have authority, if he shall deem it best for the defendant and not harmful to society, to postpone the pronouncement of final sentence and judgment upon such conditions as he shall deem proper and reasonable as to probation of the person convicted, the restitution of the property involved, and the payment of the costs of the case. Such postponement shall be in the form of a suspended sentence for a definite number of years, running from the date of the plea or verdict of guilty and shall expire in like manner as if sentence had been pronounced; provided however, the Court having jurisdiction may at any time during the period of suspension revoke the same and order execution of the full sentence.

In Canard v. State, 225 Ark. 559, 283 S.W.2d 685 (1955), the court construed these two statutes and pointed out that although previous decisions had sometimes made distinctions:

... no distinction need now be made, and that it is immaterial whether the trial court actually (a) postpones the pronouncement of the sentence or (b) postpones the execution of the sentence already pronounced.

Ark. Stat. Ann. § 43-2331 (Repl. 1977) adopted by the legislature in 1973 also made no distinction:

Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, the circuit court in which such judgment is entered, when satisfied that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby . . ., the court may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best. (Emphasis added).

A distinction does now exist, however, due to the adoption of the Criminal Code, a portion of which provides in Ark. Stat. Ann. § 41-803 (Repl. 1977) as follows:

(1) No defendant convicted of an offense shall be sentenced otherwise than in accordance with this Article [§§ 41-[ XXX-XX-XXXX ]].
(4) If a defendant pleads or is found guilty of an offense other than capital murder, the court may suspend imposition of sentence or place the defendant on probation, in accordance with Chapter 12 of this Article . . . §§ 41-1201 — 41-1211 [emphasis added].

All sentences are controlled by its provisions and, therefore, any provisions of the prior law that are inconsistent are repealed by implication. Inasmuch as the statute only authorized the court to suspend imposition of sentence or place the defendant on probation, the suspension of the execution of sentence if no longer authorized and § 43-2326 is repealed by implication. Ark. Stat. Ann. § 43-2324 has been superseded by recodification into several different parts of the new Criminal Code and is also repealed by implication. Finally, § 43-2331, insofar as it conflicts with the provisions of the Criminal Code and specifically insofar as it authorizes the suspension of the execution of sentence is repealed by implication.

We agree with appellant that he is entitled to know the effect of his sentence. This is clearly the spirit of the Code which now requires in Ark. Stat. Ann. § 41-1203(4) (Repl. 1977) that the defendant be given a written statement explicitly setting forth the terms of the suspension of imposition of sentence or probation; and whereas trial courts have typically used the phrase “on good behavior” in the past, § 41-1203(1) requires as an express condition of every suspension or probation that the defendant “not commit an offense punishable by imprisonment during the period of suspension or probation.” The Criminal Code did not repeal Ark. Stat. Ann. § 43-2305 (Repl 1977) which provides:

The law in relation to the punishment, pains and penalties of all persons when convicted, so far as relates to them, and the sentence, shall be read to each convict, and the consequences fully declared to him, so that such person so convicted and sentenced, shall in no instance be deemed ignorant of the sentence pronounced on him.

There is a substantial difference between advising a defendant that he is sentenced to 5 years suspended subject to certain behavioral requirements and in advising a defendant that the imposition of sentence will be suspended or postponed for 5 years conditioned on the same behavioral requirements. If the appellant had been sentenced in compliance with § 41-803 by the suspension of the imposition of sentence, rather than by the suspension of the execution of sentence, the trial court could have sentenced him to 15 years imprisonment upon revocation of the suspension, as is authorized by Ark. Stat. Ann. § 41-1208(6):

If the court revokes a suspension or probation, it may enter a judgment of conviction and may impose any sentence on defendant that might have been imposed originally for the offense of which he was found guilty .. .

We should, however, acknowledge that § 41-1208(6) was partially repealed by implication in 1979. The legislature amended Ark. Stat. Ann. § 43-2332 (Repl. 1977) which otherwise deals with the duties, authority and salaries of a probation officer and limited the sentence authorized upon revocation of probation:

Thereupon the court may revoke the probation and require him to serve the sentence imposed, or any lesser sentence which might have been originally imposed. (Emphasis added).

In an effort to further clarify the confusion between the Criminal Code and previous statutes, we point out that the suspension of imposition of sentence and probation, as was apparently intended by the trial court, is at variance with the Code. Reference is made throughout the Code to suspending imposition of sentence or placing the defendant on probation, but in no instance do we find provision for both. Both terms are defined in Ark. Stat. Ann. § 41-801 (1) and (2), and although both definitions require that the defendant be released “by the court without pronouncement of sentence” (in contradition to the actions of the trial court in this case), the two cannot occur simultaneously, as the former is “without supervision” and the latter requires “supervision of a probation officer.”

The decision of the trial court is accordingly modified and the sentence of appellant is reduced from 15 years to 5 years.

       The reference in Ark. Stat. Ann. § 41-1206(2) (Repl. 1977) to “multiple periods of suspension or probation” is applicable only to multiple offenses.