author: John A. Fogleman, Justice.

text:
    Tony PEREZ v. STATE of Arkansas
    CR 76-52
    541 S.W. 2d 915
    Opinion delivered October 4, 1976
    [Rehearing denied November 8, 1976.]

      Laster & Lane, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant was found guilty of possession of a controlled substance (marijuana) with intent to deliver. For reversal he challenges the validity of a search of an automobile which was being driven by him. About 100 kilograms of marijuana were found in its trunk. The trial judge, holding that the search was valid as a “consent search,” denied motions to suppress this evidence and to quash the information, both of which were based upon the asserted invalidity of the search. We affirm without reaching the question of the validity of the consent, because we find that the search without a warrant and not incident to arrest was not unreasonable under the circumstances.

At approximately 7:55 p.m. on April 28, 1975, appellant was driving east on Interstate Highway 40 near Lonoke, when he was stopped by Arkansas State Police Trooper Imboden, who was observing traffic along the highway. Imboden testified substantially as follows:

I was sitting approximately two miles west of Lonoke, eastbound, when I noticed a Ford Fairlane, occupied by two persons who appeared to be very young, pass at an extremely slow rate of speed. The occupants were sitting very low in the seat and appeared to be in the 14 year age group. The vehicle was travelling at 37 miles per hour as shown by my “radar” but slowed to at least 30 miles per hour when it passed me. The flow of traffic, which was moderate, was proceeding at 55 to 60 miles per hour, at the least. It seemed to me that the vehicle, which bore California license plates, was blocking traffic and creating a hazard. The car was “sitting down in the back and reared up in the front.” It is a part of my duties to see that traffic is flowing smoothly. I pulled out and “pulled them over.” I stopped the car for several reasons. The first was because of speed. I stop every car driving at 37 miles per hour in moderate or heavier traffic. I stop vehicles driven by persons sitting low in the seat because I suspect they might be too young to drive. I stop vehicles driving at 37 miles per hour because I suspect drunkenness. I wanted to find out why a person driving all the way from California was going so slow. When I started after them, I suspected it was a stolen car. I got out of the vehicle and directed the driver to come to me at the back of his car. I asked for his driver’s license. It was a Texas license. He appeared to be intoxicated, and I suspected alcohol, but I couldn’t smell anything. He wasn’t coherent and just didn’t act right to me. I asked for proof of ownership of the automobile and he produced a registration in someone else’s name. Perez, the driver, said the car belonged to a relative or friend. I went to the right front of the car to talk to the passenger, who turned out to be a girl. I asked her who she was and where she was going. She would not respond or look at me at first, but finally after I asked several times, she said that she was going to Tennessee or somewhere, she did not know for sure, and said she was just riding with Perez. When I was at the right front of the car, I noticed a spare tire, a suitcase or two, and some clothes in the back seat. I had been informed through intelligence meetings of the Arkansas State Police that Mexican-Americans that had equipment of this nature in the back seat were possibly carrying illegal contraband or marijuana. I was told through written information and also through contact with CID officers to be on the lookout for Mexican-Americans in a variety of cars from Texas and California carrying spare tires and clothes in the front, with the car sitting down. Except for the information from the State Police, all I had was a hunch or belief about this particular individual. I asked Mr. Perez what he had in the trunk, because it looked suspicious and I wanted to see what his reaction would be. He said he had some clothes. I asked if he minded if I saw what was in the trunk and he did not say anything. I said, “You don’t have to, but I would like to see what is in the trunk.” Without any further response he went and put the keys in the trunk and opened it. It was difficult for Perez to understand what I was saying but I felt that this was due to his intoxication and not to a language problem.

Perez denied that he was intoxicated. He testified he had smoked a marijuana cigarette about three hours earlier and had taken “speed” about eight hours earlier. He stated that he opened the trunk of his vehicle because of the officer’s menacing appearance, demeanor and gestures. He denied that Irnboden told him he had a right not to open the trunk. He said that the trooper told him that he had been stopped because the car had “highjacker” shock absorbers. Perez stated that he was driving at a speed of 48 to 50 miles per hour. The testimony of the passenger tended to corroborate that of Perez as to the officer’s actions and statements and as to the speed of the vehicle.

It is the duty of the State Police to patrol the highways and to enforce the laws of the state relating to motor vehicles and the use of the highways. Ark. Stat. Ann. § 42-407 (Repl. 1964). Therefore, the original intrusion upon Perez’ freedom of movement was justified as a proper investigatory stop, either to determine the reason for the subject vehicle’s slow speed, which violated Ark. Stat. Ann. § 75-604 (Supp. 1975) or to determine if the driver was of legal age to operate a vehicle. Ark. Stat. Ann. § 75-309 (Supp. 1975). See Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). In either event, it was proper for the officer to demand that Perez exhibit his driver’s license. Ark. Stat. Ann. § 75-323 (Repl. 1957).

When Officer Imboden actually confronted him the defendant manifested symptoms of intoxication and displayed a driver’s license from one state and a registration certificate from another, issued to an entirely different person. In addition, the clues to which Imboden had been alerted by the CID and the State Police were manifested in “plain view.” Assuming the officer had no more than a suspicion before he stopped Perez, either Perez’ apparent intoxication coupled with evidence that the vehicle may have been stolen or the “plain view” evidence that the vehicle contained contraband justified a thorough search.

It is well established that warrantless searches of automobiles that are constantly movable may be reasonable when, under the same circumstances, a search of a home, store or other fixed piece of property would not be. Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967); Brinegar v. U.S., 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). An important consideration in contrasting automobile searches with other types is that the extent of police-citizen contact involving automobiles will, of necessity, be substantially greater than such contacts in a home or office; therefore the citizen’s expectation of privacy in his auto is not the same as in his home. Also, “community caretaking functions” will more likely bring police officers in plain view of evidence of crimes or contraband in a car than in a home or office. Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973).

Whenever a police officer has reasonable cause to believe that contraband is being unlawfully transported in a vehicle then the vehicle may be the object of a warrantless search. Gordon v. State, 259 Ark. 134, 529 S.W. 2d 330; Carroll v. U.S., 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 ALR 790 (1925). Determination of the soundness of his concluding that probable cause for the search existed is made in the light of the particular situation, with account taken of all the circumstances. Gordon v. State, supra; Brinegar v. U.S., 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). See also, Adams v. Williams, supra; Sibron v. New Tork, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968). Even though a stop for a traffic violation may not justify a vehicle search, circumstances surrounding the stopping together with facts becoming apparent to the officer after the stop has been made may afford probable cause to believe that the vehicle contains contraband. Gordon v. State, supra. In such cases, given exigent circumstances, the right to search and the validity of the consequent seizure depend on the reasonableness of the cause the seizing officer has for believing that the contents of the automobile offend against the law. Cox v. State, 254 Ark. 1, 491 S.W. 2d 802, cert. den. 414 U.S. 923, 94 S. Ct. 230, 38 L. Ed. 2d 157; Moore v. State, 244 Ark. 1197, 429 S.W. 2d 122, cert. den. 393 U.S. 1063, 89 S. Ct. 714, 21 L. Ed. 2d 705.

Given probable cause, the search here was valid if it was not reasonably practical to obtain a search warrant. Tygart v. State, 248 Ark. 125, 451 S.W. 2d 225, cert. den. 400 U.S. 807, 91 S. Ct. 50, 27 L. Ed. 2d 36. See also, Scott v. State, 249 Ark. 967, 463 S.W. 2d 404; Maltos-Roque v. U.S., 381 F. 2d 130 (5 Cir., 1967). Cf. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).

As pointed out in Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970), the circumstances furnishing probable cause to search a particular automobile for particular articles are most often unforeseeable, so that, if an effective search is to be made, it must often be made immediately and without a warrant or the car must be seized and held without a warrant for whatever period is necessary to obtain a warrant. Accordingly, the court held in Chambers that, for constitutional purposes, given probable cause to search, either course is reasonable under the Fourth Amendment. Since Imboden was alone and the parties were obviously nonresidents of the state, it would have been foolish for him to have left the vehicle in quest of a search warrant at that hour of the night. The impracticality of obtaining a search warrant in this case is obvious. The chances of successfully executing a search warrant after the passage of time required to obtain one were speculative to say the least. Cf. Husty v. U.S., 282 U.S. 694, 51 S. Ct. 240, 75 L. Ed. 629 (1931). It is recognized that normal police procedures in a metropolitan area may be neither normal nor possible on a rural-area roadside. Cady v. Dombrowski, supra.

The critical inquiry then is whether there was probable cause for Officer Imboden to believe that the contents of the automobile offended against the law, i.e., were contraband. The question of reasonableness or unreasonableness is one of realistic and not theoretical approach. Schwimmer v. U.S., 232 F. 2d 855 (8 Cir., 1956), cert. den. 352 U.S. 833, 77 S. Ct. 48, 1 L. Ed. 2d 52. The rule of probable cause is a practical, nontechnical conception. Brinegar v. U.S., supra; Adams v. Williams, supra. Probable cause is to be evaluated from the viewpoint of a prudent and cautious police officer at the time he acts, and not from the vantage point of a library. The question is a pragmatic one to be decided in the light of a particular case and the answers are not to be found by the application of a mathematical formula. Constitutional standards permit common sense and honest judgments by police officers in their probable cause determinations. Sanders v. State, 259 Ark. 329, 532 S.W. 2d 752. See also, Brinegar v. U.S., supra. Judicial review should take into account the fact that a police officer has to act upon the spur of the moment and that he is not a constitutional lawyer, nor is he afforded the luxury of hindsight usually possessed by reviewers of his action. State v. Contursi, 44 N.J. 422, 209 A. 2d 829 (1965); State v. Johnson, 230 A. 2d 831 (R.I., 1967). In appraising the evidence, regard must be given to the nature of the believed crime, and the recognized methods or devices of its commission and the common and specialized experience and work-a-day knowledge of policemen taken into account. State v. Contursi, supra; State v. Miller, 47 N.J. 273, 220 A. 2d 409 (1966). The question is whether the facts available to the officer at the moment of the search would warrant a man of reasonable caution to believe that the action taken was appropriate, Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); People v. Tassone, 41 Ill. 2d 7, 241 N.E. 2d 419 (1968), cert. den. 394 U.S. 965, 89 S. Ct. 1318, 22 L. Ed. 2d 567; or whether the search is one which fair-minded persons, knowing the facts, and giving due consideration to the rights and interests of the public, as well as to those of the suspect, would judge to be an unreasonable or oppressive intrusion. State v. Criscola, 21 Utah 2d 272, 444 P. 2d 517 (1968).

As we see it, the same standards govern probable cause whether the question is validity of a search and seizure or validity of an arrest. In the context of warrantless arrest, we have said that probable cause is a reasonable ground for suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe the accused had committed a crime. Johnson v. State, 249 Ark. 208, 458 S.W. 2d 409; Sanders v. State, supra. We have also said that probable cause exists when the facts and circumstances within the officer’s knowledge and of which he has trustworthy information are sufficient to warrant a man of reasonable caution in the belief that an offense is being committed. Jackson v. State, 241 Ark. 850, 410 S.W. 2d 766. See also, Adams v. Williams, supra.

A reasonable suspicion of an officer that the driver of a motor vehicle is intoxicated has been held sufficient justification, not only for stopping the vehicle, but for searching for intoxicants or drugs when driving a motor vehicle while under the influence of intoxicants or drugs is a violation of such statutes as Ark. Stat. Ann. §§ 75-1027 (Repl. 1957), 75-1029 (Supp. 1975) and 75-1026.1 et seq (Supp. 1975). State v. Gustafson, 258 S. 2d 1 (Fla., 1972). We have held that a person’s conduct while under the observation of a police officer is a proper factor to be considered in evaluating probable cause. Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458. See also, Terry v. Ohio, supra; Peters v. New York, sub. nom. Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968). The fact that the rear of the automobile appeared to be low was a significant fact when considered with other information tending to cause the officer to believe that there was contraband in the automobile. See Burke v. State, 235 Ark. 882, 362 S.W. 2d 695, cert. den. 373 U.S. 922, 83 S. Ct. 1523, 10 L. Ed. 2d 421. See also, People v. Bringardner, 233 Mich. 449, 206 N.W. 988 (1926); Nichols v. U.S., 176 F. 2d 431 (8 Cir., 1949).

In considering the evidence available to Officer Imboden, it was proper for the officer to take into consideration conditions identifiable as the basis for a suspicion that the contents of the vehicle offended against the law in the collective experience of law enforcement officers who have dealt with detection of illegal transportation of a controlled substance. Cf. Terry v. Ohio, supra. The mere fact that Imboden’s information about this experience was hearsay is not destructive of probable cause based in part thereon. See Jackson v. State, supra; Jones v. State, supra. Probable cause is evaluated by the courts from collective information of police and not merely on the personal knowledge of the officer making the decision. Johnson v. State, supra; Jones v. State, supra. When the conduct of Perez and the absence of an odor of alcohol were considered in the light of the other information possessed by the officer, what otherwise was only a reasonable suspicion was supported by circumstances sufficiently strong to warrant a reasonably cautious, discreet and prudent police officer in the exercise of common sense to arrive at the honest judgment that the vehicle contained contraband. Nothing more is required. Husty v. U.S., supra; Sanders v. State, supra.

The officer would have been derelict in his duty had he not searched the automobile. Cf. Russell v. State, 240 Ark. 97, 398 S.W. 2d 213; Terry v. Ohio, supra. It has been said, in a case involving the search under the rear seat cushion of an automobile for intoxicating liquors, that the search was the duty of the searching officer, who had approached an empty vehicle parked in a dark alley and, upon throwing the beam of his flashlight into the vehicle, had discovered several empty tin cans of one gallon capacity and a back seat cushion so disarranged as to make it appear that something was concealed under it. Smith v. State, 155 Tenn. 40, 290 S.W. 4 (1927). The Tennessee court aptly pointed out that the policeman is a watchman to seek for probable offenders and offenses against the law, and that the security of citizens is dependent upon the faithful performance of his duties. While that case involved duties of an officer in a metropolitan area, it is recognized that in non-metropolitan areas enforcement of traffic laws and supervision of vehicular traffic may be a large part of the officer’s duties. Cady v. Dombrowski, supra.

The exigencies of the situation made a search of the automobile proper, with or without the consent of the person who was in control of the vehicle. See Husty v. U.S., supra. Nor was the scope improper. See People v. Jackson, 241 Cal. App. 2d 189, 50 Cal. Rptr. 437 (1966); People v. Superior Ct., 44 Cal. App. 3rd 207, 118 Cal. Rptr. 586 (1974). Even if appellant consented to the search, he merely consented to what might have been done without his permission. Cf. Patrick v. State, 245 Ark. 923, 436 S.W. 2d 275.

Since we find the warrantless search to be reasonable, the judgment is affirmed.

We agree: Harris, C.J., and George Rose Smith and Jones, JJ.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    OSAGE OIL AND TRANSPORTATION INC. v. CITY OF FAYETTEVILLE
    76-72
    541 S.W. 2d 922
    Opinion delivered October 4, 1976
    [Rehearing denied November 8, 1976.]

      Esther M. White, for appellant.

      James N. McCord, for appellee.
   Conley Byrd, Justice.

The appellant, Osage Oil and Transportation, Inc., contends by this appeal that Section 17B-4(c) of Ordinance No. 1893 of the City of Fayetteville is unconstitutional because it provides for summary removal of signs upon an ad hoc determination by the City’s Building Inspector that a particular sign is unlawfully maintained. In support of its contentions, appellant relies upon McLean v. Fort Smith, 185 Ark. 582, 48 S.W. 2d 228 (1932). The City of Fayetteville on the other hand relies upon our decisions in McKibbin v. Fort Smith, 35 Ark. 352 (1880) and Harvey v. DeWoody, 18 Ark. 252 (1856), which permit summary action by a city when no factual dispute is involved.

In the trial court appellant stipulated that it did not obtain the permit required by the sign ordinance to erect its sign and that the sign otherwise violated the sign ordinance because of the size and set back restrictions in the ordinance. Since appellant readily admits that its sign as erected is in violation of the sign ordinance, we affirm the judgment upon the basis set forth in McKibbin v. Fort Smith and Harvey v. DeWoody, supra, without reaching the constitutional issue raised by appellant. This is in accord with our long standing rule that we will not pass upon constitutional questions if the litigation can be determined without doing so, Searcy County v. Stephenson, 244 Ark. 54, 424 S.W. 2d 369 (1968).

Appellant also suggests that Section 17B-4(c) of Ordinance 1893 of the City of Fayetteville is ultra vires because the penalty provisions set forth in Ark. Stat. Ann. § 19-2829(h) are exclusive. We find no merit in this contention because Ark. Stat. Ann. § 19-2831 provides:

“This Act [§§ 19-2825 — 19-2831] shall be construed liberally. The enumeration of any object, purpose, power, manner, method, or thing shall not be deemed to exclude like or similar objects, purposes, powers, manners, methods, or things.”

Appellee has abstracted additional portions of the record and now contends that it is entitled to recover the costs thereof. We deny this request for two reasons:

(1) the abstract of the appellant was sufficient to present the issue upon which it relied; and
(2) appellee neglected to tell this court the amount of the actual costs or time spent in abstracting the additional portions of the record.

Affirmed.

We agree: Harris, C.J., and Holt and Roy, JJ.

      We upheld the validity of this sign ordinance in Board of Adjustment of Fayetteville v. Osage Oil and Transportation, Inc., 258 Ark. 91, 522 S.W. 2d 836 (1975). Appellant erected the sign between the date of the trial court’s judgment and our reversal but no vested rights were acquired thereby.


text:
    Eddie L. BREWSTER et al v. Vannette W. JOHNSON
    76-276
    541 S.W. 2d 306
    Opinion delivered October 4, 1976

      Dickey, Drake & Bynum, for appellant.

      Coleman, Gantt, Ramsay & Cox, by: William C. Bridgeforth, for appellee.
   Conley Byrd, Justice.

The trial court found as a fact that appellant Eddie L. Brewster had not been a resident of District 54 (being a part of Jefferson County) for one year next preceding the date of election as required by Article 5, § 4 of the Arkansas Constitution and directed the Secretary of State to omit appellant’s name from the official list of candidates to be certified to the Jefferson County Election Commission. For reversal appellant contends that the “durational requirements” of Article 5, § 4 of the Constitution of Arkansas are invalid under the Equal Protection Clause, abridge his fundamental right to travel, and infringe his fundamental right to vote as possessed by the electorate of the State. He also contends that the trial court erred in holding that he had not been an elector of District 54 for the required time.

The record shows that appellant was a student at the University of Arkansas at Pine Bluff from April 15, 1972 through the summer term of 1976. When he entered the University he listed his permanent mailing address as 608 Spruce Street, Augusta, Woodruff County, Arkansas, and he continued to do so through the Spring semester, registration which was held in January 1976. On May 31, 1976, while registering for the Summer semester he changed his permanent mailing address to 815 West Barraque Street, Apartment E., Pine Bluff, Arkansas. The same information appears in his own handwriting in his applications for financial aid in attending the University. It is also admitted that from May 30, 1972 through March 9, 1976 appellant was a registered voter and voted in Woodruff County in every election up through and including the March 9, 1976 election. Appellant first transferred his voter registration to Jefferson County on March 18, 1976. He has paid no taxes nor assessed any personal property taxes in Jefferson County until August 13, 1976. The petitions by which appellant seeks to run as an independent candidate for representative from District 54 were filed with the Secretary of State on April 6, 1976. It was stipulated that appellant would testify that he considered himself a resident since 1972.

In reviewing the findings of fact by the trial court on appeal we must affirm them if there is any substantial evidence to support such findings. On the record before us we cannot say that there is no substantial evidence to support the trial court’s finding that appellant was not a resident of District 54 for one year before the date of election.

For his contention that Article 5, § 4 contravenes the United States Constitution appellant principally relies upon Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972), and the line of cases from California following Dunn v. Blumstein, supra, such as Thompson v. Mellon, 9 Cal. 3d 96, 107 Cal. Rptr. 20, 507 P. 2d 628 (1973) and Smith v. Evans, 42 Cal. App. 3d 154, 116 Cal. Rptr. 684 (1974).

Article 5, § 4 of the Arkansas Constitution provides:

“No person shall be a Senator or Representative who, at the time of his election, is not a citizen of the United States, nor any one who has not been for two years next preceding his election a resident of this State, and for one year next preceding his election a resident of the county or district whence he may be chosen. Senators shall be at least twenty-five years of age and Representatives at least twenty-one years of age.”

Requirements similar to those in the Arkansas Constitution, supra, can be found in the Constitutions of nearly every State, except Nevada. Only five states require less than a year. See table set out in Hayes v. Gill, 52 Hawaii 251, 473 P. 2d 872 (1970). The United States Constitution provides that “no person shall be a representative who shall not have .. . been seven years a citizen of the United States....” [Art. 1, § 2(2)] and a like provision of nine years is required of a Senator, Art. 1, § 3(3).

Dunn v. Blumstein, supra, involved durational residence laws for voter qualification. Before addressing itself to the merits of the durational residence law, Mr. Justice Marshall in writing for the majority of the court said:

“To decide whether a law violates the Equal Protection Clause, we look, in essence, to three things: the character of the classification in question; the individual interests affected by the classification; and the governmental interests asserted in support of the classification. . . .In considering laws challenged under the Equal Protection Clause, this Court has evolved more than one test, depending upon the interest affected or the classification involved. First, then, we must determine what standard of review is appropriate. In the present case, whether we look to the benefit withheld by the classification (the opportunity to vote) or the basis for the classification (recent interstate travel) we conclude that the State must show a substantial and compelling reason for imposing durational residence requirements.”

With respect to filing fee requirements for qualification of a candidate in a statutory party primary, Chief Justice Burger in speaking for the Court in Bullock v. Carter, 405 U.S. 134, 92 S. Ct. 849, 31 L. Ed. 2d 92 (1972), discussed the determination of the test to be applied in this language:

“The initial and direct impact of filing fees is felt by aspirants for office rather than voters, and the Court has not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review. However, the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters. Of course, not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review. McDonald v. Board of Election, 394 U.S. 802, 89 S. Ct. 1404, 22 L. Ed. 2d 739 (1969). ...”

The California Courts, Thompson v. Mellon, supra, have taken the position that in determining the validity of durational candidate qualifications to cities, the cities must show the same substantial and compelling reason for imposing durational residence requirements to candidate qualification that the United States Supreme Court applied to voter qualification. In applying that test to the durational qualifications, the court struck down a two year durational requirement for candidates for the office of city councilman. Justice Mosk, in a concurring opinion went farther by stating: . . indeed, all such durational residential requirements should be rejected because they can be justified solely on a paternalistic theory that the citizens of yesterday knew what is best for the governance of the citizens of today and tomorrow.” In a dissent Justice Burke stated his views of the test to be applied as follows:

“Initially, we must determine what standard governs in measuring the constitutionality of various restrictions imposed upon the right to run for public office. The latest pronouncement of the United States Supreme Court indicates that the traditional ‘rational basis’ test may be sufficient in the absence of a discrimination based upon wealth or some other ‘suspect’ classification, (see Bullock v. Carter, 405 U.S. 134, 142-144, [31 L. Ed. 2d 92, 99-100, 92 S. Ct. 849], applying a ‘close scrutiny’ test to invalidate a Texas filing fee scheme which tended to exclude from the ballot candidates unable to afford the substantial fees at issue therein.) The residence requirement at issue may operate to restrict the field of candidates from which voters might choose, but, as stated in Bullock, ‘The existence of such barriers does not of itself compel close scrutiny.’ (Id. at p. 143 [31 L. Ed. 2d at p. 100].)”

Following the decision in Thompson v. Mellon, supra, the California Court of Appeal, Third District, in Smith v. Evans, supra, held invalid a one year durational residence requirement for city council candidates. In so doing the court stated:

“It is unnecessary to decide here whether the relatively stringent ‘compelling interest’ test or the relative mild ‘reasonable necessity’ test is appropriate. Even by the measure of the latter, the one-year durational residence requirement for local candidates fails. Its preference for settled inhabitants and its denial of political opportunity to new inhabitants is restrictive beyond its reasonable necessity for achieving legitimate public ends.”

Other courts in considering durational residence requirements of candidates for state offices contained in the state’s constitution have arrived at a different result. See Gilbert v. State, Alaska, 526 P. 2d 1131 (1974), [state senator|; Walker v. Yucht, (D.C. Del. 1972), 352 F. Supp. 85 [office of state general assembly]; Hayes v. Gill, 52 Hawaii 251, 473 P. 2d 872 (1970), [state representative]; State ex rel Gralike v. Walsh, Mo. 483 S.W. 2d 70 (1970), [state senator]; and Chimento v. Stark, (1973 D.C. N.H.) 353 F. Supp. 1211, affd. 414 U.S. 802, 94 S. Ct. 125, 38 L. Ed. 2d 39 [Governor of New Hampshire], In so doing, all of these courts except Hawaii and a concurring opinion in Chimento v. Stark, supra, have applied the “compelling state interest” test or at least given lip-service to the test.

When one considers that durational residence requirements, usually considered in terms of citizenship or domicile, are required in practically all of the State Constitutions for state officers and that seven and nine years citizenship is required in the United States Constitution for Representatives and Senators respectively, we cannot agree with the statements in Thompson v. Mellon, supra, that such durational requirements “can be justified solely on a paternalistic theory that the citizens of yesterday know what is best for the governance of the citizens of today and tomorrow.” In fact history records that the seven year provision in the United States Constitution Article 1 § 2(2) was inserted by the Constitutional Convention because it was thought that three years, as originally proposed, was not enough time for securing that local knowledge which ought to be possessed by a congressman, The Constitution of the United States by David K. Watson, Volume I, page 146. The State of Arkansas has had five Constitutions, the Constitution of 1836, the Constitution of 1861, the Constitution of 1864, the Constitution of 1868 and the present Constitution of 1874, all of which have carried the same durational qualifications for candidates to the State Legislature. In fact the 1868 Constitution was approved by Congress June 22, 1868, 15 Stat. 72, Ch. 69. When viewed with this historical setting and the almost unanimous requirement in every state of this Nation, we do not believe that such durational requirements should be considered as “suspect” classification or as “invidious” discrimination. If the classification of State officers is neither “suspect” nor “invidious” then of course the “rational basis” test when applied to the classification under consideration would not invalidate such requirements.

Neither do we interpret the United States Supreme Court decisions as requiring the “Compelling State Interest” test. When viewed by the three tests stated by Mr. Justice Marshall in Dunn v. Blumstein, supra, we find:

1. The character of the classification is contained in practically every state constitution and a corresponding durational requirement is set forth in the Federal Constitution.

2. The individual interests affected by the classification are the exception rather than the rule. Nearly every community, figuratively speaking, has had its feuds between the Martins and the McCoys that have been settled by unwritten and unpublished compromises — such feuds should not be renewed through ignorance.

3. Furthermore to hold such classification invalid to protect the interest of the few, who fall in the exception, would permit the political bosses in the more wealthy districts of the State of keep the political leaders in the less wealthy or rural districts busy with their home chores through hired agitators as candidates while the wealthy political bosses concentrated their efforts on state wide political races.

Everyone who has learned to drive an automobile has already learned the philosophical lesson — i.e. there is a lot of difference between talking about something and doing something. The same philosophy applies to government. It has been less than two decades since headlines in the newspapers of Boston, Massachusetts were telling the citizens of Little Rock, Arkansas, how they should handle their school racial problems. But if one can believe what he presently reads in the newspapers, it seems that some of the good citizens of Boston are now having trouble practicing what was preached to Little Rock during the 1957 Integration Crises. Stated in the words of the old courthouse political wag it seems that “A man ought to wear out at least one pair of shoes in a community before he undertakes to speak for it or tell it how to run its business.”

Now obviously it would appear that the “reasonable basis” test ought to be applied to reasonable durational qualifications for state officers. But if the United States Supreme Court should subsequently decide that the “compelling state interest” is the proper test we think the foregoing discussion is sufficient to satisfy even that test in upholding the validity of durational qualifications of a candidate.

Affirmed.

Harris, C.J., concurs in the result.

We agree: Holt and Roy, JJ.


author: Elsijane T. Roy, Justice.

text:
    Floyd D. WILLIAMS v. STATE of Arkansas
    CR 76-93
    541 S.W. 2d 300
    Opinion delivered October 4, 1976

      Blevins & Pierce, by: James W. Stanley Jr., for appellant.

      Jim Guy Tucker, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

Appellant was charged with capital felony murder in violation of Ark. Stat. Ann. § 41-4702 (Supp. 1973) for the death of Kenneth Wells who was slain during the course of a robbery. At trial by jury appellant was found guilty as charged, and after rendering its verdict the jury heard evidence of aggravating circumstances as required by Ark. Stat. Ann. § 41-4710 (Supp. 1973). No mitigating circumstances were offered by appellant. In assessing the aggravating circumstances the jury determined that they did not justify imposition of the death penalty and consequently sentenced appellant to life imprisonment without parole. This appeal ensues.

Appellant first claims error in the refusal of the trial court to dismiss the information against him as being violative of his rights under the Fourteenth Amendment to the United States Constitution. He contends the statutes under which his penalty was determined are constitutionally vague, overbroad and vest too much discretion in the jury. This contention involves Ark. Stat. Ann. §§ 41-4710 — 41-4712 which require that, upon a determination of guilt, the jury consider specified aggravating and/or mitigating circumstances as a guideline in establishing the sentence to be imposed.

The argument here urged was decided adversely to appellant’s contention in Neal v. State, 259 Ark. 27, 531 S.W. 2d 17 (1976). In Neal we held that the statutory language should be so susceptible of “ . . . common understanding and practice that it cannot be said an ordinary man or juror would have to speculate as to its meaning.” We reaffirm our earlier holdings that the questioned language is amenable to such common understanding and practice as to be constitutionally sound. See also Collins v. State, 259 Ark. 8, 531 S.W. 2d 13 (1975).

Upon a finding of guilt appellant faced a death sentence or life imprisonment without parole. Since the jury imposed life imprisonment without parole appellant is not in a position to question the constitutionality of those provisions of the statute which permit the imposition of the death penalty under certain circumstances.

In Harris v. State, 259 Ark. 187, 532 S.W. 2d 423 (1976), the appellant received a sentence of life imprisonment without parole. He contended that Act 438 of 1973 (incorporating the statutes here in dispute) was constitutionally improper in that it conferred upon the jury more discretion than is legally permissible in fixing punishment. In Harris we stated:

. . . [T]his appellant received only a sentence to life imprisonment without parole. We find nothing in any of the opinions in Furman [408 U.S. 238 (1972)] to indicate that the court’s restrictions upon a jury’s discretion in the matter of punishment apply to anything except the imposition of the death penalty. * * *

In light of the above authorities we find no merit in appellant’s first point.

Appellant also urges error in the refusal of the trial court to grant his motion for a directed verdict at the close of the State’s case because the circumstantial evidence was not sufficient to warrant a conviction. A directed verdict is proper only when no fact issue exists and upon appeal we review the evidence most favorably to appellee, affirming if there is any substantial evidence. Burks v. State, 255 Ark. 23, 498 S.W. 2d 336 (1973). The fact that evidence is circumstantial does not render it insubstantial. Williams v. State, 258 Ark. 207, 523 S.W. 2d 377 (1975). In Upton v. State, 257 Ark. 424, 516 S.W. 2d 904 (1974), we held that where circumstantial evidence is involved a determination of whether the evidence excludes every other reasonable hypothesis than the guilt of the defendant is basically a question for the jury.

We find the evidence here ample to raise a fact issue. The evidence showed the decedent had been robbed; eyewitness accounts connected appellant with the crime; and appellant’s alleged admission to two other men that he murdered the decedent made more than ample proof for the question to go to the jury. Therefore, appellant’s motion for a directed verdict was properly refused.

Appellant next questions the cross-examination of Pearlie Mae Givens. During the cross-examination in an attempt to impeach her testimony the State alluded to a tape recording of a conversation the prosecutor had with the witness in his office prior to trial. Appellant immediately objected, and both sides retired to chambers to consider the State’s effort to authenticate the recording for purposes of impeaching Witness Givens’ testimony. It was agreed that the State would discontinue its efforts to discredit the witness by use of the tape and appellant would withdraw his motion for a mistrial. The court thereafter admonished the jury to disregard the State’s previous line of inquiry and the attorney for appellant stated, “This is sufficient, Your Honor.”

Appellant’s next averment again questions the constitutionality of Ark. Stat. Ann. § 41-4712 (Supp. 1973) on a different theory. He urges that this statute, upon a determination of guilt, compels him to assert mitigating circumstances which in effect destroys his right not to testify. As heretofore set out in this opinion, appellant cannot question the constitutionality of a statutory provision when he has not been penalized by the provision of the statute under attack. Without introducing evidence of mitigating circumstances appellant received life without parole instead of death, so this argument is of no avail.

Appellant’s last assignment of error concerns the action of the trial court in sustaining the State’s objection to appellant’s cross-examination of prosecuting witness George Horton concerning his need for money to support his heroin addiction. This point has no merit because although the court initially sustained an objection to Horton’s testimony, thereafter the court allowed full cross-examination of the witness on this point. The court stated: “. . . [Y]oü can go ahead and ask him anything you want to now.” Appellant then pursued his cross-examination of the witness to the full extent desired.

In addition to the points discussed, we have considered every objection and assignment of error required by Ark. Stat. Ann. § 43-2725 (Supp. 1975), and, finding no error, the judgment is affirmed.

Affirmed.

We agree. Harris, C.J., and Byrd and Holt, JJ.

      Now Ark. Stat. Ann. § 41-1501 (effective January 1, 1976).

      Now Ark. Stat. Ann. §§ 41-1301 — 41-1302 (effective January 1, 1976).

      Now Ark. Stat. Ann. §§ 41-1301 — 41-1304 (effective January 1, 1976).


text:
    C. W. CURAN v. STATE of Arkansas
    CR 76-101
    541 S.W. 2d 923
    Opinion delivered October 4, 1976
    [Rehearing denied November 8, 1976.]

      Smith, Stroud, McClerkin, Conroy & Dunn, by: Winfred L. Dunn Jr., for appellant.

      Jim Guy Tucker, Atty. Gen., by: B. J. McCoy, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

Appellant C. W. Curan was charged in Miller County on January 17, 1974, with the crime of robbery in violation of Ark. Stat. Ann. § 41-3601 (Repl. 1964). He subsequently was tried and convicted of a crime in the State of Texas. On March 1, 1974, an extradition warrant was issued for appellant by the Governor of Texas, and Arkansas requested a hold on July 5, 1974.

On September 5, 1975, while incarcerated in Texas, appellant filed a pro se motion to dismiss the robbery charge pending against him in Arkansas on the ground that he had been denied a speedy trial. On November 3, 1975, he filed a pro se petition for writ of mandamus in this Court to compel the Miller Circuit Court to act on his motion to dismiss. In an unpublished per curiam order dated March 22, 1976, appellant’s petition was denied.

Arkansas authorities requested temporary custody of appellant on December 4, 1975, which request was granted and appellant was returned to Arkansas. On April 9, 1976, another motion to dismiss the charges against appellant was filed, alleging that he had been denied the right to a speedy trial. After a hearing on April 19, 1976, the trial court found that appellant had not been denied his constitutional right to a speedy trial and thus was not entitled to have the charges against him dismissed. From the trial court’s ruling comes this appeal.

Appellant relies upon two points for reversal, the first being that the trial court should have sustained his motion to dismiss based upon the denial of the right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution.

The United States Supreme Court has held that the right to a speedy trial is so basic and fundamental that it applies in state criminal cases. Klopfer v.North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). The Court also has held that one who is imprisoned in another jurisdiction has a right to a speedy trial, and on demand a state has a duty to make a diligent and good faith effort to secure the presence of the accused from the custodial jurisdiction of another state and afford him a trial. Dickey v. Florida, 398 U.S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970).

In Smith v. Hooey, 393 U.S. 374, 89 S. Ct. 575, 21 L. Ed. 2d 607 (1969), the United States Supreme Court held that the Sixth Amendment guarantee of a right to a speedy trial is essential to protect at least three basic demands of criminal justice:

[1] to prevent undue and oppressive incarceration prior to trial, [2] to minimize anxiety and concern accompanying public accusation and [3] to limit the possibilities that long delay will impair the ability of an accused to defend himself. (Citation omitted.)

The Court has recognized, however, that the right to a speedy trial is necessarily relative, and that it is consistent with delays and depends upon circumstances. Beavers v. Haubert, 198 U.S. 77, 25 S. Ct. 573, 49 L. Ed. 950 (1905); Pollard v. United States, 352 U.S. 354, 77 S. Ct. 481, 1 L. Ed. 2d (1957).

In Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the Court set out four factors to be assessed in determining whether an accused has been deprived of his right to a speedy trial. The four factors identified by the Court are “length of delay, the reason for the delay, the defendant’s assertion of his right and prejudice to the defendant.”

In the instant case the length of delay is regrettable, but it must be viewed in the light of the reason for the delay. There is no showing of a lack of good faith on the part of the Arkansas officials. Before appellant could be tried in Arkansas, he was incarcerated in another jurisdiction. Almost as soon as Arkansas officials discovered appellant’s whereabouts they placed a hold on him, but before appellant could be returned he began his efforts to have the charges against him dismissed. In spite of appellant’s efforts to have the charges dismissed there are no indications that he made any effort to demand a trial. In Barker, supra, the Court said:

. . . [F]ailure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.

Although the delay in terms of passage of time is obvious, it was caused for the most part by the efforts of appellant to have the charges against him dismissed. Furthermore, appellant has furnished no special evidence of prejudice to him attributable to the delay. In light of all the circumstances we find the trial court properly refused to dismiss the charges against appellant.

Appellant also contends that since he was denied a speedy trial he should have been discharged from custody pursuant to Ark. Stat. Ann. § 43-1708 (Repl. 1964). This section provides:

If any person indicted for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment, he shall be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.

In State v. Davidson, 254 Ark. 172, 492 S.W. 2d 246 (1973), a defendant incarcerated in Colorado filed a motion for dismissal of the charges against him on the ground that the State of Arkansas had not given him a speedy trial pursuant to § 43-1708. The motion was granted by the trial court, and the State appealed. This Court reversed the trial court’s ruling, holding that:

* * * When an accused is incarcerated in a federal institution or another state, he is not incarcerated or held on bond awaiting a determination of whether he is guilty or innocent, but is incarcerated for the commission of another crime for which he has been found guilty. In such situation there is no good reason why the accused should not be required to place himself on record in the attitude of demanding a trial before he would be entitled to discharge under § 43-1708 or § 43-1709. (Italics supplied.)

In Davidson the Court further held that a motion to dismiss the charges for failure to grant a speedy trial does not constitute a demand for trial for purposes of § 43-1708.

The Interstate Agreement on Detainers, Ark. Stat. Ann. § 43-3201 (Supp. 1975), to which Texas is also a party, outlines the procedure for demand of a speedy trial by an accused incarcerated in one state with charges pending against him in a sister state. There are no indications in the record that appellant ever gave the prosecuting attorney or Miller County officials written notice of his place of imprisonment, demanded final disposition of the charges against him or otherwise provided information required by the Interstate Agreement on Detainers.

Finding no merit in appellant’s contentions, the trial court’s refusal to grant the motion to dismiss is affirmed.

Affirmed.

We agree. Harris, C.J., and Byrd and Holt, JJ.


text:
    Kenneth Ray ALLEN v. STATE of Arkansas
    CR 76-119
    541 S.W. 2d 675
    Opinion delivered October 11, 1976

      Tommy H. Russell and Bob Dawson, for appellant.

      Jim Guy Tucker, Atty. Gen., by: B. J. McCoy, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant was found guilty of perjury in the first degree alleged to have been committed during his testimony in a hearing to set bail in the Municipal Court of Walnut Ridge on March 24, 1975. He lists three points for reversal. We find no reversible error on any point and affirm.

Appellant argues that the alleged false statements on which the charge was based were neither material nor relevant, either to the charge of non-support, on which he was brought into the municipal court, or to the amount of appearance bond on the charge. He says that the alleged false statements were: (1) Appellant had not had anything to drink in the past three weeks; (2) he did not make any threats toward his former wife during a telephone conversation; (3) he did not make any threats toward his children during a telephone conversation; (4) he did not make any threats concerning his former wife’s house during a telephone conversation. We disagree. To say the very least, his drinking habits and the question of threats of violence were relevant and material to the hearing held by the municipal court on the fixing of a bond for appellant’s appearance on the nonsupport charge when he moved for a continuance on his first appearance before the municipal judge.

The amount of bail is a matter that lies peculiarly within the sound judicial discretion of the court fixing it. Connley v. U.S., 41 F. 2d 49 (9 Cir., 1930); U.S. v. Mule, 40 F. 2d 503 (2 Cir., 1930); People v. McDonnell, 296 N.Y. 109, 71 N.E. 2d 423 (1947); Green v. Petit, 222 Ind. 467, 54 N.E. 2d 281 (1944); People v. Searles, 229 App. Div. 603, 243 N.Y.S. 15 (1930). It should be fixed according to the circumstances surrounding the case and the accused with the rights of the accused and the public good kept in mind. U.S. v. Mulcahy, 155 F. 2d 1002 (2 Cir., 1946); In re Scott, 38 Neb. 502, 56 N.W. 1009 (1893); Gregory v. State, 94 Ind. 384, 48 Am. Rep. 162 (1883); People v. Searles, supra; Braden v. Lady, 276 S.W. 2d 664 (Ky., 1955); Green v. Petit, supra. The circumstances of the accused’s apprehension may be considered. State v. Mastrian, 266 Minn. 58, 122 N.W. 2d 621 (1963), cert. den. 375 U.S. 942, 84 S. Ct. 349, 11 L. Ed. 2d 274. It is proper to consider the character and reputation and the criminal activities and tendencies of the person charged as factors bearing upon the security required to insure his appearance. People v. Snow, 340 Ill. 464, 173 N.E. 8, 72 ALR 798 (1930). It is also appropriate to consider recent actions and threats of the accused because they bear upon his good faith in appearing. U.S. v. Mulcahy, supra; Ex parte Thomas, 91 Tex. Cr. App. 49, 237 S.W. 302 (1922); Kendrick v. State, 180 Ark. 1160, 24 S.W. 2d 859.

Thus, we find no merit in this point.

The next point for reversal is very difficult to treat, because it is a conglomeration of assorted assertions of error, without considering whether objections were made on the questions now argued or whether they were otherwise raised in the trial court. The point is thus entitled:

THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTING ATTORNEY TO ASK APPELLANT AND OTHERS IRRELEVANT AND IMMATERIAL QUESTIONS SIMPLY TO INFLAME THE JURY.

Although there may be adequate grounds for sustaining the trial court on some of the alleged errors and the reason for the absence of objection may be obvious, we will not discuss any of the questions to which exception is now taken unless an obj .ction was made in the trial court. To do so would require a much more extensive treatment of the record than that given in appellant’s brief and a greater elaboration on the merits of these questions than the entire argument of appellant upon the point. We would add that we find no question among those listed on this point which is so inflammatory that proper corrective action could not have been taken if an objection had been made. We will also forego discussion of any of these questions where an objection was sustained or a question withdrawn and further corrective action, such as an admonition to the jury or the declaration of a mistrial, was not asked, because none of these were of such an inflammatory nature as would have justified any conclusion that the verdict was the result of passion and prejudice or the fundamental fairness of the trial substantially impaired. Furthermore, we will not discuss any asserted error where both the argument and the record consist of transcript references only. This will not permit proper appellate consideration. To adequately treat such questions would place insurmountable burdens upon judicial resources.

Appellant does argue that the court erred in overruling his attorney’s objection to a question asked by the prosecuting attorney on cross-examination of Hon. Leonard Lingo, Judge of the Municipal Court of Walnut Ridge, a witness called by appellant. The prosecuting attorney asked, “He [appellant] also denied before you that he wilfully failed to support the children, didn’t he?” If there was any error in allowing this cross-examination, it was harmless, because it was already rather obvious from the undisputed evidence that there had been a trial on the charge and testimony heard, which was certainly indicative that appellant had pleaded not guilty. The municipal judge had testified on direct examination that the case involving the charge on which appellant was arrested had come up on March 24, 1975, and had been continued to March 31, at the request of appellant. Prior to this inquiry, appellant’s ex-wife and the mother of his child, Donna Wolverton, who had made the charge of non-support against appellant, had testified on cross-examination. Appellant’s attorney had asked her if she had not testified at appellant’s trial in municipal court and had asked her a question about her testimony at that trial.

The prosecuting attorney also asked appellant on cross-examination whether he had done what Judge Lingo had ordered him to do. Appellant answered that he had paid child support until he was locked up on the preceding Wednesday. Over appellant’s objection, the prosecuting attorney asked whether, during the intervening 29 weeks, appellant had paid only $525, as reflected by the records, or the $675 he should have paid, and whether he would say the records “lie.” Appellant answered that the records were wrong and that he had the receipts at home. Wilful nonsupport of children is a criminal offense. Ark. Stat. Ann. § 41-204 (Repl. 1964). Violation of a proper court order for periodical payments would require the imposition of punishment on the violator. Ark. Stat. Ann. §§ 41-210, 211, 212 (Repl. 1964). Cross-examination about such an offense is permissible. Moore v. State, 256 Ark. 385, 507 S.W. 2d 711; Rickett v. Hayes, 251 Ark. 395, 473 S.W. 2d 446. Appellant’s answer was a denial and the matter was not pursued. Therefore, it would be difficult to say there was prejudice to appellant, or an abuse of the trial court’s discretion in allowing this question. Alexander v. State, 257 Ark. 343, 516 S.W. 2d 368. Appellant put his character in issue, so cross-examination with reference to alleged non-support was appropriate. Lewis v. State, 258 Ark. 242, 523 S.W. 2d 923.

Mike Hill, who had been acquainted with appellant for six or seven months, was called as a character witness. On cross-examination the prosecuting attorney asked the witness whether, in deciding that appellant was such a truthful and fine fellow, he had heard that Allen was living in a trailer with a lady to whom he was not married. This cross-examination about particular conduct of appellant was permissible in order to test the value of the knowledge of the witness. Amos v. State, 209 Ark. 55, 189 S.W. 2d 611. The inquiry was obviously made in good faith, because appellant testified that he had been living with a woman for a longer period of time than Hill had known him.

A third point is:

THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTING ATTORNEY TO CROSS-EXAMINE HIS OWN WITNESS UNDER THE COURT’S RULING OF REDIRECT EXAMINATION.

On cross-examination of Donna Wolverton, appellant’s counsel questioned her about the time of the filing of nonsupport charges and the issuance of a warrant for the arrest of appellant, about the length of time that elapsed between the time she had last been in contact with appellant prior to a telephone conversation two nights before appellant was arrested, and about the date of her separation from appellant and the filing of a divorce suit by her. She was somewhat confused about the calendar year in which certain of these events happened, but related them to each other. On redirect examination, the prosecuting attorney read the affidavit for a warrant of arrest, showed it to her and asked her whether her signature was affixed. This affidavit showed the date of its execution. Appellant argues that since the prosecuting attorney had asked the witness on direct examination whether she knew when the charges of non-support were filed, this amounted to cross-examination of the state’s own witness. This was not the objection made, but there was no abuse of the trial court’s discretion in allowing this examination in light of the answers given by the witness on cross-examination.

The basic function of redirect examination is to enable the witness to explain and clarify any relevant matters in his testimony which have been weakened, confused or obscured by cross-examination and to rebut the discrediting effect of any damaging statements or admissions so elicited. Grievance Committee v. Dacey, 154 Conn. 129, 222 A. 2d 339, 22 ALR 3d 1092 (1966), apl. dism. 386 U.S. 683, 87 S. Ct. 1325, 18 L. Ed. 2d 404 (1967); Couch v. St. L. Public Service Co., 173 S.W. 2d 617 (Mo. App. 1943). See also, People v. Tucker, 142 Cal. App. 2d 549, 298 P. 2d 558 (1956); State v. Stevens, 69 Wash. 2d 906, 421 P. 2d 360 (1966); Nail v. State, 231 Ark. 70, 328 S.W. 2d 836; Clift v. State, 155 Ark. 37, 243 S.W. 955. The rehabilitation of a witness before the trier of fact is an important and proper purpose. State v. Stevens, supra. See also, Hoy v. Kansas Turnpike Authority, 184 Kan. 70, 334 P. 2d 315 (1959); State v. DeZeler, 230 Minn. 39, 41 N.W. 2d 313, 15 ALR 2d 1137 (1950). The scope and extent of redirect examination lies within the sound judicial discretion of the trial judge. Couch v. St. L. Public Service Co., supra. See also, Nail v. State, supra. In this matter the court’s discretion is very liberal. Grievance Committee v. Dacey, supra. A witness should be allowed full opportunity to explain matters brought out on cross-examination or to rebut any discrediting effect they may have had or to correct any wrong impression that may have been created. Johnson v. Minihan, 355 Mo. 1208, 200 S.W. 2d 334 (1947). Courts go very far in permitting redirect examination for these purposes, even though the admission of evidence thus brought out may not have been proper on direct examination. Johnson v. Minihan, supra. See also, Clift v. State, supra. It is not an improper exercise of that discretion to permit the examiner to refresh the memory of the witness by a statement he had signed. State v. Stevens, supra.

We cannot say that the trial judge abused his discretion in this instance.

The judgment is affirmed.

We agree: Harris, C.J., and George Rose Smith and Jones, JJ.

      Under Rule 8.5 (viii) of the Arkansas Rules of Criminal Procedure, effective 1 January 1976, the evidence of these threats would clearly have been pertinent, material and relevant to the pretrial release inquiry.


text:
    William Lawrence FRENCH v. STATE of Arkansas
    CR 76-120
    541 S.W. 2d 680
    Opinion delivered October 11, 1976

      William M. Ravkind, Dallas, Tex.; Jerry D. Patchen, Houston, Tex., and W. B. Putman, Fayetteville, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

For reversal of a marijuana conviction in violation of the Controlled Substance Act, Ark. Stat. Ann. § 82-2617 (Supp. 1975), appellant William Lawrence French raises the three points hereinafter discussed.

POINT 1. The record admittedly contains evidence, if believed, that would establish the defense of entrapment. The trial court recognized the sufficiency of the evidence, but over objections of appellant to the word “unconscious” instructed the jury “. . . Entrapment exists where the criminal design or act originated, not with the accused, but with an officer of the law or his agent who lures the defendant into the unconscious commission of an unlawful act by persuasion, deceptive representation or inducement. . . .” We hold that the trial court erred in using the word “unconscious,” because it is not an element in the defense of entrapment. See Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413 (1932), where Chief Justice Hughes pointed out that it was the duty of officers of the law to prevent, not to punish crime and that it was a gross abuse of authority for the officers to cause or create a crime in order to punish it. See also Ark. Stat. Ann. § 41-209 (Supp. 1975).

POINT 2. Appellant’s contention that the trial court erred in failing to advise the jury that it was his burden to establish the defense of entrapment by a preponderance of the evidence, seems to have been raised for the first time on appeal. Therefore we do not reach that issue.

POINT 3. In addition to the evidence from which the jury could have found that a Government agent by the name of Haas had planned the acquisition of the marijuana and persuaded appellant to assist in its acquisition for the purpose of prosecuting and convicting appellant and others, the trial court ruled inadmissible evidence showing that Haas was paid by the Drug Enforcement Administration of the United States Government upon a contingent arrangement depending upon whether he makes a case and how many arrests result. To support the trial court’s ruling, the State mentions that Haas did not testify and concludes that such testimony was inadmissible because it involved collateral issues. The same contention, now made by the State, was argued by the Government in Sorrells v. United States, supra. In answer to the argument there that the defense of entrapment would lead to “the introduction of issues of a collateral character relating to the activities of the officials of the Government. . . ”, the court there stated: “The Government in such a case is in no position to object to evidence of the activities of its representatives in relation to the accused. . . . ”

As pointed out by the concurring opinion of Mr. Justice Roberts in Sorrells v. United States, supra, “Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer.” If such be the facts in a case, we can see no reason for preventing the defendant from proving them. The remuneration of an officer contingent upon the conviction of an accused has always been viewed as suspect, see Doty v. Goodwin, 246 Ark. 149, 437 S.W. 2d 233 (1969). Consequently, we must hold that the trial court erred in excluding the testimony showing the contingency of Haas’ remuneration.

Reversed and remanded.

We agree: Harris, C.J., and Holt and Roy, JJ.


text:
    O. W. FLETCHER v. CITY OF NEWPORT
    CR 76-108
    541 S.W. 2d 681
    Opinion delivered October 11, 1976
    [Rehearing denied November 8, 1976.]

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

      Harold S. Erwin, City Attorney, for appellee.
   Elsijane T. Roy, Justice.

On August 27,1975, appellant O. W. Fletcher was arrested for the offense of driving while under the influence of intoxicants and refusing to take an intoximeter test. During the course of the arrest, Officer Mike Wilson informed appellant of his rights pursuant to Ark. Stat. Ann. § 75-1045 (c)(3) (Supp. 1975), but appellant was not informed that law enforcement officers would assist him in obtaining an additional test if he so desired. Appellant refused the test. He did not contest the trial in Municipal Court but appealed for a trial de novo in Circuit Court.

In the interim between the municipal court and circuit court trials appellant was again convicted in municipal court for driving while under the influence of intoxicants. On trial de novo on the first charge in the circuit court appellant was found guilty and the jury assessed his penalty on the driving while intoxicated charge as 24 hours in jail, a $100.00 fine and suspension of drivers license for 30 days. Conviction of refusal to take the intoximeter test brought a suspension of driving privileges for 30 days to run concurrently with the other suspension.

Appellant first contends “the court erred in allowing the introduction of the results of the intoximeter test,” relying upon the case of Small v. City of Little Rock, 253 Ark. 7, 484 S.W. 2d 81 (1972). In Small the Court excluded the results of the “breatholator test” when the subject was not advised of his rights, but stated that the case would not be dismissed if there were other evidence of intoxication which made, of itself, a fact question. Here appellant insists that because he was not advised the arresting officer would assist him in securing an independent medical opinion the results of the test are inadmissible.

The rights to which one is entitled, when requested to submit to a test for intoxication, are contained in Ark. Stat. Ann. § 75-1045 (c)(3), which reads as follows:

(3) The person tested may have a physician, or a qualified technician, registered nurse, or other qualified person of his own choice administer a complete [chemical] test or tests in addition to any administered at the direction of a police officer. The law enforcement officer shall advise such person of this right. The refusal or failure of a law enforcement officer to advise such person of this right and to permit and assist the person to obtain such test or tests shall preclude the admission of evidence relating to the test or tests [taken] at the direction of a law enforcement officer.

In the instant case appellant never took the test, and, therefore, there were no results to exclude. He refused to submit to the test because, according to his own testimony, he thought he would be declared guilty no matter what the outcome revealed. It naturally follows that appellant, in not having any test results introduced into evidence against him, was not deprived of the right the statute cited is intended to insure. Thus this contention is wholly without foundation.

Appellant’s second argument is that the court erred in permitting the City to inquire regarding a subsequent conviction of driving while intoxicated - second offense.

The date of the offense for which appellant was standing trial was August 27, 1975. The date of the trial de novo before the circuit court was February 17, 1976. Appellant took the stand and offered testimony in his own behalf.

The issue of appellant’s credibility arose when on direct examination he testified as follows:

Q. Okay, you have worked out there for twelve years?
A. Yes, sir.
Q. Before this event in August of 75 that we are talking about here when you were stopped by Officer Wilson, had you ever been arrested for anything before?
A. No, sir, not since I have been in Newport I have never been arrested.
Q. Have you éver been convicted of anything?
A. No.
Q. During the entire twelve years?
A. That is right. (Italics supplied.)

On cross-examination, testing the credibility of the witness, it was revealed by appellant’s own testimony that he had been convicted of five misdemeanor charges since 1975. These included the driving while intoxicated - second offense on February 6, 1976, which he testified was on appeal, but whether an appeal was pending was disputed by the City. At this point the court overruled the appellant’s objection. Since the record reflects that appellant by his own testimony invited the questions concerning his previous arrests we find no reversible error in this attack on his credibility. See Montaque v. State, 219 Ark. 385, 242 S.W. 2d 697 (1951).

Affirmed.

We agree. Harris, C.J., and Byrd and Holt, JJ.


text:
    Roger CLARK v. STATE of Arkansas
    CR 76-132
    541 S.W. 2d 683
    Opinion delivered October 11, 1976

      Dale E. McCoy, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Terry R. Kirkpatrick, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

Appellant Roger Clark was convicted on two counts of selling a controlled substance. The jury fixed his punishment at ten years in the State penitentiary and a fine of $5,000 on each count. It is from this conviction and sentence that appellant appeals.

On appeal, appellant first contends the court abused its discretion in denying his motion for a continuance. At arraignment on September 15, 1975, the case was set for trial on December 8, 1975. On October 17, 1975, appellant requested a continuance, stating:

* * ■* Said defendant has submitted himself to the Human Services Center of Russellville, Arkansas, for a program of psychological counseling and treatment pursuant to an order of this Court dated October 8, 1975; and that defendant and his attorney desire a period of time beyond the present trial date to utilize this counseling program in preparation of defendant’s case for trial.

Trial was then set for January 12, 1976. On December 30, 1975, counsel requested another continuance, citing his trial schedule as the basis for his motion. This motion was denied by letter from the court dated January 5, 1976, and received by counsel for appellant on January 7, 1976.

It is well settled that the granting or denying of a continuance is within the sound discretion of the trial court and that, on appeal, this Court will not disturb that decision unless abuse of discretion is shown. See Cox v. State, 257 Ark. 35, 513 S.W. 2d 798 (1974), and cases cited therein. Appellant here was represented by the same attorney at all stages of the proceedings, and four months was certainly adequate time to prepare this case for trial. Therefore we find no abuse of the trial court’s discretion in denying appellant’s motion for a continuance.

The second contention raised is that the court deprived appellant of due process of law by failing to immediately suspend all proceedings in the prosecution when appellant filed notice of his intent to rely upon the defense of mental disease or defect; and further failed to direct appellant to undergo examination and observation by a court-appointed psychiatrist or psychiatric hospital, as required by the new Criminal Code.

On January 8, 1976, only four days before trial, appellant filed a motion for application of the provisions of the new Criminal Code in his trial and a notice of intent to raise mental disease or defect as a defense pursuant to Ark. Stat. Ann. § 41-102 (4) (Crim. Code 1975). Although counsel for appellant had received a psychological evaluation of appellant from the Human Services Center of Russellville, Arkansas, in December of 1975 appellant did not comply with § 41-102(4), which provides that:

(4) A defendant in a criminal prosecution for an offense committed prior to the effective date of this Code may elect to have the construction and application of any defense to such prosecution governed by the provisions of this Code. Such election shall be made by motion to the court which is to conduct the trial. The motion shall be timely filed but not later than ten (10) days before the date set for the trial of the case, except that the court for a good cause shown may entertain such motion at a later time. (Italics supplied.)

Counsel for appellant knew as early as December that the above-mentioned psychological evaluation indicated that appellant suffered from schizophrenia, but he failed to so “notify the prosecutor and the court at the earliest practicable time.” Ark. Stat. Ann. § 41-604(1) (Crim. Code 1975).

Since timely request was not made as required by statute and no good cause was shown as to why the motion should be entertained at a later time the court was not required to proceed under the provision of the new Criminal Code. Consequently appellant’s case was controlled by the provisions of Ark. Stat. Ann. § 43-1301 et seq. (Supp. 1975). We find that the court has complied with the requirements of § 43-1301 in that appellant had been psychologically evaluated. The psychologist, Alan Tuft, who made the evaluation testified in appellant’s behalf at his trial. Furthermore, a written report from a qualified psychiatrist, Dr. W. R. Oglesby, was introduced without objection. Said report was made at the request of Mr. Tuft and considered in Tuft’s evaluation of appellant. The report in part read as follows:

It is my impression that this young man has average or above average intelligence. He knows right from wrong and is able to refrain from that which is wrong if he chooses to do so. I have found no past or present evidence of any psychosis or impairment of judgment which would affect his behavior. Therefore, it is my opinion that he is responsible for his behavior and should be held accountable for it. The best treatment in this situation would be for him to have to answer any consequences of his behavior. I do not feel that he would respond to any type of psychotherapy or medication.

It was certainly within discretion of the court to determine whether appellant was entitled to any further examination, and we find no abuse of discretion on this issue.

It is not necessary to discuss appellant’s last contention concerning denial of certain rights under the new Criminal Code (Ark. Stat. Ann. § 41-612) since, as heretofore pointed out in this opinion, he was not entitled to proceed under the new code because the request was not timely filed.

Finding no reversible error, the judgment of conviction is affirmed.

We agree. Harris, C.J., and Byrd and Holt, JJ.

      The informations charge the offenses were committed on July 3, 1975, and the new Criminal Code became effective January 1, 1976.


author: George Rose Smith, Justice.

text:
    SPRINGDALE FARMS et al v. Barbara Ann McGARRAH
    76-105
    541 S.W. 2d 928
    Opinion delivered October 18, 1976

      Crouch, Blair, Cypert & Waters, by: Jay N. Tolley, for appellants.

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

This workmen’s compensation claim arises from a wrist injury sustained by the claimant, Mrs. McGarrah, in the course of her employment in a chicken processing plant. A surgical operation did not completely restore the claimant’s use of her wrist. Dr. Moore fixed the functional loss of use of the arm below the elbow at 10%. Dr. Martin’s testimony was similar to that of Dr. Moore, except that Dr. Martin made no estimate of the extent of disability. The employer and insurance carrier now contend that there is no substantial evidence to support the Commission’s finding, affirmed by the circuit court, that the permanent partial loss of use amounts to 35%.

We consider the case to be controlled by our decisions in Ray v. Shelnutt Nursing Home, 246 Ark. 575, 439 S.W. 2d 41 (1969), and Anchor Construction Co. v. Rice, 252 Ark. 460, 479 S.W. 2d 573 (1972). In the Ray case we recognized that the Commission is not limited to the medical testimony in determining the extent of functional disability, but we also pointed out that the Commission’s knowledge and experiences are not evidence and can only be used in weighing the competent proof. The Anchor case, like the case at bar, involved a scheduled injury. Ark. Stat. Ann. § 81-1313 (c) (22) (Repl. 1960). There we held that a scheduled injury cannot be apportioned to the body as a whole in determining partial disability and that the Commission, in fixing the partial loss of the use of a limb, cannot consider a wage earning loss in addition to the functional loss.

In the present case the Commission followed Anchor to the extent of not taking into account any wage earning loss, suffered by the claimant. Nevertheless, the Commission increased the partial loss of use from 10%, as found by the medical testimony, to 35%. The Commission based its action upon the claimant’s testimony that as a result of her injury she has difficulty in gripping mops and brooms in her housework, that she cannot open fruit jars, that her daughter must do most of the ironing, and that in other respects she is handicapped in the practical performance of her daily domestic activities.

The trouble is, all these difficulties stem from the weakness in the claimant’s right hand. That weakness was studied and evaluated by the doctors, with Dr. Moore fixing the functional loss at 10%. The claimant’s testimony added nothing to the medical evidence; so, as in the Ray case, supra, her testimony cannot be used as a basis for increasing the percentage of functional loss.

The explanation for what is seemingly a harsh result was given in Anchor, where we quoted the following paragraphs from Larson’s Workmen’s Compensation Law, § 58.10:

The typical schedule provides that, after the injury has become stabilized and its permanent effects can be appraised, benefits described in terms of regular weekly benefits for specified numbers of weeks shall be paid, ranging, for example, from 312 weeks for an arm, 288 for a leg, and 160 for an eye to 38 for a grpat toe and 7 Vi for one phalange of the little finger. These payments are not dependent on actual wage loss. Evidence that claimant has had actual earnings, or has even been regularly employed at greater earnings than before, is completely immaterial.
This is not, however, to be interpreted as an erratic deviation from the underlying principle of compensation law — that benefits relate to loss of earning capacity and not to physical injury as such. The basic theory remains the same; the only difference is that the effect on earning capacity is a conclusively presumed one, instead of a specifically proved one based on the individual’s actual wage-loss experience. The effect must necessarily be a presumed one, since it would be obviously unfair to appraise the impact of a permanent injury on earning capacity by looking at claimant’s earning record for some relatively short temporary period preceding the hearing. The alternative is to hold every compensation case involving any degree of permanent impairment open for a lifetime, making specific calculations of the effects of the impairment on claimant’s earnings each time claimant contends that his earnings are being adversely affected. To avoid this protracted administrative task, the apparently cold-blooded system of putting average-price tags on arms, legs, eyes, and fingers has been devised.

The reasoning that applies to loss of earning capacity must also apply to loss of housework capacity. Otherwise workmen’s compensation insurance becomes general accident insurance.

We conclude that the Commission’s action in increasing the claimant’s loss from 10% to 35% must be set aside. Inasmuch as the compensability of the claim was controverted at the outset, the Commission was not in error in allowing the maximum attorney’s fee upon the award — now 10%.

Reversed.

We agree. Harris, C.J., and Fogleman and Jones, JJ.


text:
    Henry Morris SANDY v. Lloyd SALTER
    76-132
    541 S.W. 2d 929
    Opinion delivered October 18, 1976

      Pickens, Boyce, McLarty & Watson, hy: James A. McLarty, for appellant.

      Harkey, Walmsley & Belew, by: James M. Belew, for appellee.
   George Rose Smith, Justice.

This is a workmen’s compensation case. The claimant, Henry Sandy, suffered a back injury while he was working as a carpenter in the remodeling of a house owned by the appellee, Lloyd Salter, and his wife. The key question is whether the claimant was or was not an employee of the Salters. This appeal is from a circuit court judgment sustaining the Commission’s finding that Henry Sandy was not such an employee.

The facts are singularly free from dispute. Salter is engaged in the trucking business. He and his wife decided to add a room to each end of their home. They had no plans or specifications except a photograph, clipped from a magazine, of a house which they wanted their home to resemble. Salter provided the money for the project but left the details pretty much to his wife. During the remodeling, which extended over a period of several months and cost from $20,000 to $25,-000, the Salters lived elsewhere “up on the highway,” but one or the other went down to the project two or three times a day, because they were raising chickens there.

For some ten years the claimant had worked for (or with) his older brother, Dewayne Sandy, in the building trade. The Salters had confidence in Dewayne and turned the remodeling over to him. There was no discussion about how long it would take or what it would cost. Dewayne simply agreed to do the work and to make the house look as much as possible like the magazine picture.

When Dewayne was free to begin the job, he brought with him his brother (the claimant) and another carpenter, both of whom had been working under his supervision. Dewayne hired the two men and supervised them. He was responsible for the progress and completion of the project. He kept a record of each man’s working hours. He selected and ordered all the materials that were used.

The Salters, who had no knowledge of building or carpentry, exercised no direct supervision over the work. The three workmen were paid by the hour, with Dewayne, as the foreman, receiving the highest wages. Mrs. Salter wrote the checks for labor and materials, relying upon Dewayne’s time records and choice of materials. The Salters believed, and the proof indicates, that they could have terminated the project if they had run out of money and that they could have discharged any or all of the workmen if their work had been unsatisfactory. The relationships that we have described were in existence when the claimant was hurt on the job.

In determining whether a workmen’s compensation claimant was an employee we have substantially followed the common-law rule that the governing test is whether the asserted employer had the right to control the claimant in his work. Clarksville Meat Co. v. Brooks, 237 Ark. 717, 375 S.W. 2d 671 (1964). That test was recognized by the Commission in the case at bar. In reaching its conclusion that the Sandy brothers were not subject to Salter’s control the Commission pointed out that (1) Salter did not direct how the end result was to be accomplished, (2) Dewayne hired the other two workmen, (3) Dewayne purchased the materials without Salter’s approval, and (4) the other workers took their directions from Dewayne.

On the other hand, as the Commission noted, (1) the Salters paid the workmen’s wages, (2) the Salters apparently could have discharged Dewayne without liability, and (3) the risk of an increase in the cost of materials was borne by the Salters, not by Dewayne. In seeking a reversal the appellant stresses our recognition that the employer’s power to terminate the employment at will is a strong circumstance tending to show the subserviency of the workman. Hollingsworth & Frazier v. Barnett, 226 Ark. 54, 287 S.W. 2d 888 (1956).

Upon the basic, issue of “control,” as that conception was developed at common law in master and servant cases, the proof presents a close and difficult question; but we cannot say that there is no substantial evidence to support the Commission’s decision. Our anxiety, however, is greatly lessened by a fresh point of view that has won some acceptance after it was first suggested, apparently, by Professor Larson, who of course is a recognized authority upon workmen’s compensation’s law. We have not had occasion to consider this theory before, because this is apparently the first case to reach us in which the claimant’s injury had no connection with the employer’s regular business — here Salter’s trucking business. Such injuries are not ordinarily compensable, because the statutory definition of an employee excludes one whose employment is casual and not in the course of the employer’s regular business. Ark. Stat. Ann. § 81-1302 (b) (Repl. 1960). Here the claimant’s employment, extending over a period of months, can hardly be said to have been “casual.”

Larson makes the point that the recognition of control as the governing test of the employment relationship arose in common-law tort cases, where the question was whether the master was vicariously liable for his servant’s negligence. In that setting the master’s right to control his servant’s detailed activities was highly relevant to the question whether the master ought to be liable. The issue, however, was the master’s liability for injuries inflicted by the servant upon third persons. By contrast, the issue in compensation cases is the master’s liability for injuries sustained by the employee. Larson, Workmen’s Compensation Law, § 43.42 (1973).

Larson reasons that in a case such as the one at bar, the law should consider, in determining whether an employer-employee status exists, not only the matter of control but also the relationship between the claimant’s own occupation and the regular business of the asserted employer. Larson, §§ 43.50 and 43.51. With regard to the latter aspect of the problem, two considerations have weight: First, how much of a separate calling or profession is the claimant’s occupation? How skilled is it? To what extent may it be expected to carry its own share of the workmen’s compensation responsibility? Second, what relationship does the claimant’s work bear to the regular business of the asserted employer? Is there a continuous connection or only an intermittent one, or is there no connection at all? See Larson, § 43.52.

The case at hand confirms the soundness of Larson’s approach to the problem. If the power to control is alone to be taken into account, the Salters might be found to have had that power, owing to their authority to dismiss the workmen at will. Yet there was certainly no actual power to control the men in the details of their work, for the Salters knew nothing about how to go about remodeling a home.

By contrast, Dewayne Sandy was a skilled specialist in the building trade. He employed his own crew, with whom he had worked in the past, fixed their wages, kept track of their working time, and directed their activities on the job. Dewayne alone had the expertise to maintain the progress of the work by selecting and arranging for the delivery of all necessary materials. In the circumstances it seems plain that the duty to obtain workmen’s compensation insurance, and the responsibility for failing to obtain it, ought to rest upon Dewayne rather than upon the Salters. It is altogether unlikely that the average homeowner, in arranging for his house to be remodeled, would have the remotest idea that he should obtain workmen’s compensation insurance if he pays his “contractor” by the hour instead of by the job. Thus the facts in this case demonstrate the soundness of Professor Larson’s suggested two-way approach to the peculiar situation presented here.

Affirmed.

We agree. Harris, C.J., and Fogleman and Jones, JJ.


text:
    Carl DUNCAN v. STATE of Arkansas
    CR 76-114
    541 S.W. 2d 926
    Opinion delivered October 18, 1976

      Frierson, Walker, Snellgrove & Laser, by: Mark Ledbetter and David M. Laser, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Upon trial by jury the appellant was found guilty of first-degree rape and was sentenced to a 40-year prison term. Two points for reversal are argued.

First, Duncan testified in his own defense. On cross-examination the prosecutor inquired about Duncan’s guilt in a number of earlier instances, this being a typical question: “In March, the 7th of 1954, in Sacramento, California, were you guilty of burglary?” Duncan denied his guilt with respect to all the offenses except a battery committed in California on July 8, 1953. Upon objection the prosecutor admitted, in chambers, that his questions were taken partly from an F.B.I. “rap sheet”, but that document was not displayed to the jury.

It does not appear from the record before us that the questions were improper. An accused may be asked in good faith, on cross-examination, if he is guilty of having committed a named criminal offense, though he cannot be asked if he was indicted or accused of a crime. Moore v. State, 256 Ark. 385, 507 S.W. 2d 711 (1974); see also the American Bar Association’s Standards Relating to the Prosecution Function and the Defense Function, § 5.7d (Approved Draft, 1971). Here there was no request that the F.B.I. rap sheet be made a part of the appellate record. Consequently, we have no way of determining whether it contained enough information about the various asserted offenses to justify a good faith inquiry about Duncan’s guilt. We do not imply that a mere showing that Duncan had been arrested 20 years earlier in another state upon a certain charge would be adequate information to form the basis for such a question.

It is also argued that the supposed offenses were too remote in time to have any bearing upon Duncan’s credibility. Our cases have not been completely harmonious upon this issue of remoteness. We do not explore the matter, however, because the judgment must be reversed upon another ground. At the retrial the newly adopted Uniform Rules of Evidence will be in force, because new procedural statutes ordinarily apply to pending cases. DeLong v. Green, 229 Ark. 100, 313 S.W. 2d 370 (1958). Rules 608 and 609 make changes in the law with regard to proof of specific instances of prior conduct on the part of the witness and with regard to prior convictions. Ark. Stat. Ann. § 28-1001, Rules 608 and 609, effective July 1, 1976. With the limited information supplied by this record about Duncan’s earlier conduct or convictions, we are not in a position to pass upon the effect of the new rules in this case.

Secondly, a reversal is sought on the basis of a juror’s having read a newspaper account that was published on the morning of the second day of the trial. The story, which appeared in a Jonesboro newspaper (where the case was being tried), contained this statement: “During a lengthy cross examination, Burnett read from a three page Federal Bureau, of Investigation rap sheet listing Duncan’s arrests dating back to 1953.” When the issue was raised upon a resumption of the trial, one juror admitted that he had read the article (although the jurors had been instructed not to read newspaper reports of the trial). In response to questions by the court — questions that were understandably very leading — the juror said that he could put the newspaper account entirely out of his mind and not be influenced by it in any manner. The defense motion for a mistrial was overruled.

The motion should have been granted, especially in view of the earlier protracted cross-examination based upon the rap sheet. The State, in arguing that the court’s ruling was right, relies upon our holding in Howell v. State, 220 Ark. 278, 247 S.W. 2d 952 (1952). It does not clearly appear from that opinion that the newspaper accounts contained any information not already disclosed by the testimony in the case. Here, to the contrary, the press report described a three-page F.B.I. rap sheet, the existence of which had not been made known to the jury. In Shroeder v. Johnson, 234 Ark. 443, 352 S.W. 2d 570 (1962), such a rap sheet was mentioned and displayed during the testimony of a witness, though it was not examined by the jury. The trial judge pointedly and positively instructed the jury to disregard the rap sheet. We nevertheless granted a new trial, because we could not say with certainty that the possibility of prejudice had been removed. Here the necessity for a new trial is even more clear. Hardly any juror, after having admittedly disobeyed the judge’s instructions not to read press accounts of the trial, would confess even a possibility of being influenced by the consequences of his own misconduct. He might very well think that such an admission on his part would result in his being charged with contempt of court. In the circumstances we cannot say with assurance that the appellant was not prejudiced by the incident.

Reversed.

We agreé. Harris, C.J., and Fogleman and Jones, JJ.


text:
    DUTTON-LAINSON COMPANY v. Lynn Williams McGEE and NATIONAL BANK OF COMMERCE, Executors
    76-80
    542 S.W. 2d 739
    Opinion delivered October 25, 1976
    [Rehearing denied November 29, 1976.]

      Rubens, Rubens & Rainey, by: Kent J. Rubens; Winslow Drummond and Robert M. Fargarson, for appellant.

      Hale, Fogleman & Rogers and Holcomb, Dunbar, Connell, Mekel, Tollison & Khayat, Clarksdale, Miss., for appellees.
   George Rose Smith, Justice.

This is a products-liability action for wrongful death, in which service upon the appellant Dutton-Lainson Company (one of two defendants) was obtained in Nebraska under the long-arm statute. Ark. Stat. Ann., Title 27, Ch. 25 (Supp. 1975). This appeal is from an order finding Dutton-Lainson to be in default because (a) its first pleading, a motion for an additional 15 days in which to plead further, was not signed by a resident Arkansas attorney and (b) its next pleading, an answer, was filed too late.

We cannot agree with the trial court’s conclusion that the harsh sanction of a judgment by default is called for in this case. Dutton-Lainson engaged a Memphis, Tennessee, attorney, Robert M. Fargarson, to defend the case. Within the time allowed by statute, Ark. Stat. Ann. § 27-1135 (Repl. 1962), Fargarson filed a motion for an additional 15 days in which to plead, alleging that the complaint asserted questions of jurisdiction and venue and other serious questions of law and fact. The motion was signed only by Fargarson, whose Memphis address appeared below his signature. The local rule, requiring that pleadings by a nonresident lawyer be also signed by an Arkansas attorney, closes with this warning: “The Clerk of this Court shall not receive for filing any pleading except in conformity with this rule.” The clerk nevertheless accepted and filed Fargarson’s motion for additional time. It is basic that a litigant should not be prejudiced by an act of the court, a principle that has been applied to an error of the clerk. Bartlett v. Standard Life & Acc. Ins. Co., 223 Ark. 37, 264 S.W. 2d 46 (1954). Here, had the clerk obeyed the local rule by rejecting the proffered motion, Fargarson, who had driven to Marion, Arkansas, to file it, could quickly have associated local counsel in the case, as he had done in the past. (We also call attention to Ark. Stat. Ann. § 27-1136, although its applicability has not been argued by counsel in this case.)

Furthermore, our Uniform Rules for Circuit and Chancery Courts provide that if a respondent opposes a pleading he shall file his response to it within 10 days after service. Rule 2 c, Ark. Stat. Ann., Vol. 3A, p. 136 (Supp. 1975). Here the motion for additional time to plead was served by mail upon plaintiffs’ counsel, but they interposed no objection within the 10 days allowed by the rule. Thus the request for time was apparently conceded, by default. In simpie fairness we cannot hold that the parties appellee, who were in themselves in default, can nevertheless take advantage of a similar default on the part of their adversaries.

We need not discuss the jurisdictional question under the long-arm statute, because the order refusing to quash the service of process is not a final appealable ruling.

Reversed.

We agree. Harris, C.J., and Jones and Byrd, JJ.