text:
    Mrs. David A. HIBBS et al v. ARKANSAS PUBLIC SERVICE COMMISSION et al
    5-5615
    471 S.W. 2d 367
    Opinion delivered October 11, 1971

      Robert Lee Byrd of Legal Aid Bureau of Pulaski Co., for appellant.

      Charles W. Baker, for Arkansas Louisiana Gas Co.; Benjamin C. McMinn, for Arkansas Public Service Commission, appellees.
   Lyle Brown, Justice.

Appellee, Arkansas Louisiana Gas Company, cut off appellant Hibbs’s gas because her check was dishonored for insufficient funds. Appellants filed a complaint with the Arkansas Public Service Commission questioning the validity of the regulation which authorized the cutoff procedure. The action of Arkla was upheld by the commission and by the circuit court on appeal. For reversal appellants contend (1) that the regulation under which Arkla proceeded was never approved according to the standards of the PSC, (2) that the cutoff being without notice and in that respect different from the notice procedure given other delinquent customers, is in violation of the equal protection rights guaranteed by the Constitution, and (3) that a change in the rules to require notice to overdrafters would not work an undue hardship on Arkla.

Appellant Mrs. Hibbs was one of thirty-three persons who signed the original petition addressed to PSC. Mrs. Hibbs obtained the signatures of the other persons, not because they had any unpleasant experiences, but because they were in sympathy with Mrs. Hibbs’s problem. All the signers are designated as appellants. The petition, or complaint, was critical of the cutoff regulation for customers giving overdrafts, describing it as being “unreasonable,. unjust, damaging, and injurious to the public health (the loss of heating and cooking facilities presents obvious dangers to families, particularly those with elderly people, children or invalid persons in the household).”

Mrs. Hibbs’s cutoff experience occurred in December 1969. We summarize her testimony. The gas bill was delivered the first week in December and she sent the check for the net amount on December 10. She received a pink slip around December 19, showing that a check for $¡10.00 caused an overdraft. She had written two checks in that amount, one to Arkla and one to J. C. Penney Company. It was not until January 9 that she was able to identify the overdraft check. All her efforts at locating the check were with the bank. She never contacted Arkla or Penney. She said she made a deposit on December 24 to cover any outstanding checks. On December 30 her gas was cut off without notice. Upon her calling the service department a service man was dispatched to her home. She said she was told that the gas was cut off for nonpayment and that she would have to go to the office and pay the bill plus $3.50 connecting fee. This she did and the gas was turned back on that same day. Mrs. Hibbs said she had been a gas customer for some five or six months and had a good paying record except for one month when she was two days late. With regard to the overdraft check she said she had considerable difficulty with the bank in getting the check. The reason she did not call Arkla was that she assumed the check was the one given J. C. Penney because she had no notice from Arkla.

Robert Nease, the office manager in charge of collections and customer contracts in Little Rock, was the only witness for Arkla. The company had 83,000 customers serviced by his office, of which sixty to seventy thousand paid monthly bills by checks. He outlined the procedure for those who fail to pay their bills during any particular month. If no payment is received and the customer has been with the company less than a year, a reminder is sent to that customer. If a delinquent customer “has been with us for one year and has a good record, we add the balance to the next month’s bill. If not then paid then we send a friendly reminder.” If there is no response to a reminder a service man is sent to cut off the gas. The procedure for bad checks is different because the computer records payment. Only when the check is returned from the bank is it known to be insufficient. An insufficient funds check is run through the bank a second time. If it is again returned to Arkla a collector is sent to the home with a cutoff order to demand payment. If the party is away from home, or refuses to pay, the cutoff is made. Exceptions are made where sick persons are known to be affected. Mr. Nease interpreted the law as making it fraudulent to give an overdraft. In further explaining why no reminder was sent the customer of an overdraft, he had this to say: “Further, we know the bank sends out a notice where a check has failed for any reason in its first pass through the bank. It takes five days for a second run so there is time for notice to reach the bank customer and for that customer to get in touch with us.”

The witness explained that it took three to five days for a check to clear the bank. The rerun of the check, so he said, takes another three to five days. Therefore, he reasoned, the customer has ample time, after notice of the first insufficiency, to make the check good before the cutoff order is issued. He said the company experience had been that twenty to twenty-five checks daily are not honored but that a majority of those checks are honored on a rerun through the bank. Nease said it would be confusing to send notice after the rerun because the mailing of the notice would run into another billing period.

There are two rules pertinent to this appeal. The first is one of the standard rules and regulations of the commission adopted March 8, 1956:

RULE 8. DISCONTINUANCE OF SERVICE.
A. For Violation of Rules and Regulations.
No utility shall discontinue service to any customer for violation of its rules or regulations nor for nonpayment of bills, without first having diligently tried to induce the customer to comply with its rules and regulations, or to pay his bills. Service shall actually be discontinued only after at least five (5) days’ written notice shall have been given to the customer by the utility; provided, however, for fraudulent, careless, negligent, or unlawful use of the commodity or service detected, or where a dangerous condition is found to exist on a customer’s premises, service may be discontinued without advance notice.

Then on March 28, 1956, Arkla gained approval by the commission of Arkla’s standard rules and regulations (tariff), among which is found the following:

IV. DISCONTINUANCE OF SERVICE, (a) The Company reserves the right to shut off the gas at any time and to remove its property from the premises for any of the following reasons: . . . . (k) When checks received from customer for amounts past due or for the required deposit are not honored when presented to the bank for payment, then service may be discontinued without advance notice.

This brings us to consideration of the points for reversal, the first one being that the regulation (tariff) IV was not by the commission approved according to the standards of the PSC. With respect to IV the commission made these findings:

5. Paragraph IV, Sub-heading (a) (k) of the Rules and Regulations of Arkansas Louisiana Gas Company as filed with this Commission provides, inter alia, “that when checks received from customer for amounts past due or for the required deposit are not honored when presented to the bank for payment, then service may be discontinued without advance notice.” This part of the rules and regulations of Arkansas Louisiana Gas Company is a valid section of the Rules and Regulations of the Arkansas Louisiana Gas Company and was approved by this commission and is binding on all consumers of gas service of said company.
7. The commission approved the Standard Rules and Regulations of Arkansas Louisiana Gas Company by Order in Docket No. U-1112 which approval had the effect of exempting said utility from the provisions of Rule 8 (A) of the Commission’s Rules for the notice requirements before discontinuance of service.

A copy of the order on Docket No. U-1112 is signed by all members of the commission and recites that it was enacted at a session of the commission after conferences with representatives of Arkla and the commission^ staff. In their argument under Point I appellants assert that the docket entry in U-1112 does not reflect that Arkla made a showing of hardship which is required before being relieved from conformity with the commission’s general rules, such as Rule 8. In the absence of an affirmative showing that the commission acted arbitrarily, we cannot lend merit to appellants’ argument. The record in fact shows that the IV (a) (k) was adopted after a series of conferences between the commission, its professional staff, and Arkla representatives. Absent a showing to the contrary we would presume that the merits of the proposed new rules were discussed between the conferees, including the need for relief based on hardship. At least the appellants, being the movants, had the burden of coming forward with proof to the contrary.

In support of Point II — the equal protection argument — it is contended that to give notice to those customers who tender no payment at all, and to give no notice to those who submit insufficient funds checks, is discriminatory. We agree with the statement in Nebbia v. New York, 291 U. S. 502 (1934): “And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.” If the testimony of Mr. Nease is to be accepted, which was apparently done by the commission, there was good reason to believe it not unreasonable to place the overdrafters in a separate category. In the ordinary course of banking they receive notice from the bank between the first and second deposit of the bad check; to give notice after the rerun would ordinarily throw the debt into another billing period, with resulting confusion; and, the giving of the check results in the computer showing the bill paid when in fact it was not. Additionally, it was shown that good results were obtained from rerunning the checks, which was of benefit to both Arkla and to the customer.

The placing of overdrafters in a separate category depends on the reasonableness of the classification as gleaned from the facts. The finding of facts by the commission has the force of a jury verdict. We so held in City of El Dorado v. Arkansas Public Service Comm’n., 235 Ark. 812, 362 S. W. 2d 680 (1962). Those findings must stand if based on substantial evidence, free from fraud, and not arbitrary. That is true even though we might disagree with the wisdom of the order. Ft. Smith v. Southwestern Bell Tel. Co., 220 Ark. 70, 247 S. W. 2d 474 (1952). Viewed in light of those standards we cannot say the commission’s approval of the classification is in error.

Finally, it is contended that to require notice to overdrafters would not work an undue hardship on Arkla. The testimony of the witness Nease was just to the contrary. Further, appellants offered no proof to support the point.

Affirmed.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Ronald CRUTCHFIELD v. STATE of Arkansas
    5607
    471 S.W. 2d 361
    Opinion delivered October 11, 1971

      Anderson <tr Slagle, for appellant.

      Ray Thornton, Attorney General; James A. Neal, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Ronald Crutchfield was convicted, in the Garland County Circuit Court, for the unlawful possession of cannabis on February 19, 1971. He was sentenced to five years in the penitentiary and was fined $2,000. On appeal to this court he relies on the following points for reversal:

“The charges pending against defendant should be reduced to a misdemeanor and remanded back to the lower court in accordance with the provisions of Act 590 of 1971.
The lower court erred in admitting evidence seized from defendant’s car before defendant had been arrested and without a search warrant, and in overruling defendant’s motion to suppress.
The lower court erred in directing that 18 jurors’ names be drawn from the jury selection box where statutory procedure clearly calls for 12 jurors to be first selected.”

The facts are briefly these: About 30 days prior to June 17, 1970, police officers found two small patches of cannabis growing in an uncultivated field near a burned-out house place out in the country from Hot Springs. The cannabis was being cultivated and the police officers kept the area under surveillance during daylight hours for several days. On several occasions, when the officers would arrive at the scene early in the morning, they found that the plants had already been watered and cultivated prior to their arrival. Finally on June 17, 1970, the sheriff of Garland County, with one of his deputies, arrived at the scene and found Ronald Crutchfield’s automobile parked in the drive of the old house place and about 50 feet from the growing cannabis.

Sheriff Canada and Deputy Land testified that when they first saw Crutchfield’s automobile parked near the cannabis, Crutchfield was near the rear of his automobile and that he went to the front of his automobile and casually picked up a pellet rifle which was laying across the hood of the automobile. Sheriff Canada testified that he recognized Crutchfield as a former police officer on the Hot Springs force and that he had known Crutchfield for a number of years. He says that he asked Crutchfield what he was doing in the area, and that Crutchfield replied that he was hunting. He says that he asked Crutchfield to surrender the pellet gun, and that Crutchfield did so without resistance. He says that as he passed by Crutchfield’s automobile, he noticed a small hand spade on the front seat of Crutchfield’s automobile and also noticed a water sprinkling can, together with a spout, on the backseat of the automobile and. an Igloo-type water cooler sitting on the floor of the automobile. between the seats. He testified that he took the keys from the switch in Crutchfield’s automobile, opened the trunk of the automobile and found some leaves of cannabis in a cellophane package and also a package of seed later identified as the seed of cannabis. He says that he then arrested Crutchfield for possession of Cannabis.

Sheriff Canada, as well as other officers who arrived at the scene following the arrest, testified that the growing cannabis had very recently been watered and cultivated; that there was still a small amount of water in the sprinkling can and water cooler, and that the spading trowel had moist dirt on it.

Mr. Crutchfield testified that he had stopped at the old house place to do some target practice with his pellet gun; that the sheriff placed him under arrest immediately and before the automobile was searched; that he knew nothing of the cannabis growing nearby, and that he has no idea how the leaves and seed of the cannabis got into the trunk of his automobile. He testified that the spading trowel belonged to him and was used in connection with raising worms for fish bait; that the sprinkling can and water cooler were used to carry water for the leaky radiator on his automobile. He testified that he loaned his automobile to various relatives and other people. He testified that his automobile had been in two separate garages for repairs, during which time it had remained out of his possession for several weeks. He testified that he also kept the automobile parked on the street in front of his house with the keys in the switch.

Crutchfield insists that this court should reduce the charges against him to a misdemeanor and remand to the trial court for further procedure under the provisions of Act 590 of 1971. Crutchfield was charged, tried, convicted and sentenced under the provisions of the Uniform Narcotic Drug Act, Ark. Stat. Ann. §§ 82-1001 — 82-1023 (Repl. 1960). Cannabis is defined, under the Act, as including “all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, or preparation of such plant, its seeds, or resin. . .” Cannabis is classified as a “narcotic drag” under the Act. Possession of cannabis is made unlawful under the Act and the penalty for first offense is fixed by statute (§ 82-1020) as a fine of $2,000 and imprisonment for not less than two or more than five years.

Act 590 of the Acts of Arkansas (The Uniform Controlled Substances Act) became effective on April 17, 1971; cannabis is a controlled substance under the Act, and Art. IV, § 1 (c) of the Act provides as follows:

“It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, # * *. Any person who violates this subsection is guilty of a misdemeanor. . .”

Section 7 of Art. IV authorizes the court to place a defendant upon probation without entering a judgment of guilt upon plea of guilty or conviction for first offenders; and Art. VI, § 1, (a) (b) (c) of the Act provides as follows:

“Prosecution for any violation of law occurring prior to the effective date of this Act is not affected or abated by this Act. If the offense being prosecuted is similar to one set out in Article IV of this Act, then the penalties under Article IV apply if they are less than those under prior law.
Civil seizures or forfeitures and injunctive proceedings commenced prior to the effective date of this Act are not affected by this Act.
All administrative proceedings pending under prior laws which are superseded by this Act shall be continued and brought to a final determination in accord with the laws and rules in effect prior to the effective date of the Act. Any substance controlled under prior law which is not listed within Schedules I through V, is automatically controlled without further proceedings and shall be listed in the appropriate schedule.”

We do not agree with Crutchfield’s contentions under his first point. In the very recent case of Shinsky v. State, 250 Ark. 614, 466 S. W. 2d 909, Shinsky was convicted for the possession of narcotic drugs and was sentenced to four years imprisonment. His conviction was affirmed by this court in an opinion delivered May 10, 1971. On May 21, 1971, Shinsky filed his petition for rehearing pointing out the provisions of Act 590 of 1971, and arguing that this court should reduce the charge to a misdemeanor and remand for a new trial under the provisions of Act 590. The petition for rehearing was denied by per curiam order on June 7, 1971, (Vol. 250 Ark. Reports), in which we said: “The grounds of petitioner address themselves to the Governor.”

We have not overlooked the cases cited by Crutch-field in support of his contention. Hamm v. Rock Hill, 379 U. S. 306, involved a series of lunch counter “sit in” cases under the federal Civil Rights Act of 1964 in which the defendants had been convicted under state law making it an offense to enter a place of business after having been warned not to do so, or to refuse to leave immediately after having entered thereon. The question in Hamm was what effect the Civil Rights Act had on cases pending, as well as convictions had, under state laws prior to the enactment of federal statute. The court in Hamm v. Rock Hill in effect held that the federal Civil Rights Act “substitutes a right for a crime,” but does not work a technical abatement as in other federal cases. The gist of the holding in Hamm is stated as follows:

“Future state prosecutions under the Act being unconstitutional and there being no saving clause in the Act itself, convictions for pre-enactment violations would be equally unconstitutional and abatement necessarily follows.”

The Washington case of State v. Zornes, 475 P. 2d 109, involved statutory interpretation. After stating the common law rule oh abatement, the case turned on legislative intent in the wording of the statute. The case of U. S. v. Schooner Peggy, 5 U. S. (1 Cranch) 37, cited by Crutchfield, had to do with a condemnation of a French vessel with cargo as a prize taken on the high seas in compliance with the federal statute permitting such seizures during war. After the seizures, and while the case was still pending in the U. S. courts, a treaty was entered into between the United States and France under which the United States agreed to return “Property captured and not yet definitely condemned. . so the question there was whether or not the Schooner Peggy and her cargo were “definitely condemned” under the statute and within the meaning of the articles of the convention.

Subsection 1 (c) of Art. IV, Act 590 makes it unlawful for any person knowingly or intentionally to possess a controlled substance in violation of the Act and the Act provides that any person who violates it is guilty of a misdemeanor. The Act does not provide a penalty for its violation, but does provide under § 7 that upon plea of guilty or conviction, a violation under subsection (c) “the court without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him on probation upon terms and condition.” (Emphasis added).

In Shinsky v. State, supra, the appellant had been convicted and his appeal was pending when Act 590 became law. His two co-defendants had not been brought to trial when Act 590 became law and Shinsky argued on his petition for rehearing that his case should be reversed and remanded to the trial court, and that he should be entitled to a trial on a misdemeanor under Act 590, the same as his co-defendants would be entitled. We concluded on petition for rehearing that Shinsky’s contentions addressed themselves to the clemency power of the Governor and not to the appellate jurisdiction of this court. We so hold in the case at bar as to Crutchfield’s first point.

In support of his second point Crutchfield argues that the evidence taken from his automobile should have been suppressed at his trial because it was obtained without a search warrant and not incidental to a lawful arrest. We find this contention to be without merit. The evidence is not contradicted that the cannabis plants had very recently been watered and cultivated, and that Sheriff Canada observed the cultivating trowel as well as the water sprinkler and empty water cooler can inside the automobile prior to his search of the automobile. In Harris v. U. S., 390 U. S. 234, the Supreme Court of the United States stated: “It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.”

In the case at bar, we are of the opinion that the sheriff had reasonable cause to suspect that Crutchfield had cannabis concealed in his automobile when he observed Crutchfield beside his automobile containing cultivating and watering implements, when the implements were in plain view and the automobile parked within 50 feet of the recently cultivated and watered cannabis plants. We conclude, therefore, that the sheriff had reasonable grounds and probable cause to make the warrantless search of Crutchfield’s automobile trunk for cannabis.

As to Crutchfield’s third and last point, the record is not clear as to the exact procedure followed by the trial court in the selection of the jury. It is true, as argued by Crutchfield, that Ark. Stat. Ann. § 43-1903 (Repl. 1964) provides as follows:

“In a prosecution for felony, the clerk, under the direction of the court, shall draw from the jury box the names of twelve [12] petit jurors, who shall be sworn to make true and perfect answers to such questions as may be asked them touching their qualifications as jurors in the case on trial, and each juror may be examined by the State and cross-examined by the defendant, touching his qualifications. If the court decide he is competent, the State may challenge him peremptorily or accept him, then the defendant may peremptorily challenge or accept him. If not so challenged by either party, he shall stand as a juror in the case, and each of the twelve [12] jurors shall be examined and disposed of in like manner. If any of said jurors are disqualified or challenged, the clerk shall draw from the box as many more as may be required, and as often as may be required, until the jury shall be obtained, or the whole panel exhausted.”

After both the state and the defendant announced that they were ready for trial, the trial court requested the clerk to call the roll of the jury. Whereupon colloquy between Crutchfield’s attorney and the trial judge occurred as follows:

"MR. ANDERSON: Your Honor, the defendant would request that the court follow section 43-1903, that being twelve jurors called in lieu of eighteen and that the jury be filled as the jurors are eliminated by cause or by peremptory challenge.
THE COURT: Well, there will be twelve jurors seated in the box. The extra six are the ones who would be called next in event of challenges; so you still have the original twelve. I think that is sufficient compliance with the statute.”

Thereupon the seats in the jury box were apparently filled by the first 12 jurors whose names were called. On voir dire one of these jurors was excused for cause and Mr. Coxie White was apparently called in his place, and the attorneys were directed to exercise their peremptory challenges. Apparently five jurors were peremptorily challenged but the record does not reveal how many of these challenges were exercised by the state and how many were exercised by the defendant. Eight jurors were seated following the peremptory challenges, and the clerk was directed to call the names of ten more jurors. One of the additional jurors was excused for cause on voir dire and at this point the record appears as follows:

“THE COURT: I believe the State would have three additional peremptory challenges;, if I’m not mistaken, and the defense would have one additional. Would you please give counsel a list.
(The clerk did so). (Counsel retired from the courtroom and returned giving list to cjerk. A conference between the Clerk and the Cdurt.)
THE COURT: The jury will be composed of the following: James Fitzhugh Tucker; Phil Shook; Frank Stitt; Jimmy Alford; Thelma Trussed; Dal Satterlee; Grace Couch; Doris Jordan; Raymond Clinton; Louis Maus; Edna Alford and Leta Whitney.
The rest of you may be excused, and will you all take the chairs I’ve assigned to you in that order, please.”

Again the record is not clear as to whether the state or the defendant exercised their final peremptory challenges.

Ark. Stat. Ann. § 43-1903 (Repl. 1964) is simple and clear on the selection of jury in felony cases. While this court does not approve of the selection of a jury in felony cases in a manner other than that provided by statute, especially when the method used is objected to by the accused, we are unable to see wherein the appellant could have been prejudiced in the exercise of his challenges to the first 12 names called when he knew the names of the next six jurors who would be called to take the place of those challenged among the first 12 names called.

In Stroud v. State, 169 Ark. 348, 275 S. W. 669, by agreement between the prosecuting attorney and the defendant’s counsel, 38 jurors were called and qualified after which the state and the defense exercised their peremptory challenges and the jury was made up from the remaining jurors who had not been eliminated by the peremptory challenges. The defendant was convicted and on appeal to this court he assigned reversible error in the manner by which the jury was selected. In affirming the conviction this court pointed out that there was nothing in the record indicating that the defendant was deprived of the right to exercise the full number of challenges given him by law, or that any person was permitted to sit on the jury against whom he desired to exercise a challenge, and in conclusion in that case, we said:

“We say again this is not a practice to be approved, as it is not the method of impaneling juries in felony cases provided by the statute, and we would reverse the judgment of conviction for that reason except for the facts: (a) It was done at defendant’s request, (b) The defendant does not show that any person was permitted to serve on the jury against whom he desired to exercise a challenge. And for these reasons appellant is in no attitude to complain of the irregular proceedings.’’

Of course, in Stroud the defendant had requested that the jury be selected in the manner employed and in the case at bar Crutchfield objected to the calling of 18 names rather than 12. However, in the case at bar, Crutchfield has shown no prejudice to his right growing out of the manner in which the jury was selected, for here, as in Stroud, he does not show that any person was permitted to serve on the jury against whom he desired to exercise a challenge. As a matter of fact, the record in the case at bar does not show that Crutchfield eventually exercised all of his peremptory challenges. Wells v. State, 247 Ark. 386, 446 S. W. 2d 217.

Finding no reversible error the judgment of the trial court is affirmed.

Affirmed.

Byrd, J., dissents.


author: Conley Byrd, Justice.

text:
    Robert L. SWANSON v. STATE of Arkansas
    5580
    471 S.W. 2d 351
    Opinion delivered October 11, 1971

      Robert L. Swanson, pro se.

      Ray Thornton, Attorney General; Gene O’Daniel, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Robert L. Swanson was convicted of burglary and sentenced to 19 years in the penitentiary. For reversal he contends among other things that the court erred in failing to try him within two terms of court as required by Ark. Stat. Ann. § 43-1708 (Repl. 1964), and that the court erred in allowing proof of other crimes.

The record shows that appellant was arrested on August 17, 1968, in the night time in the walk-in cooler of the Warehouse Market, West Memphis, Arkansas, while in the act of peeling the Warehouse Market’s safe. The State at that time sought an early trial date, but appellant escaped. He was later arrested in Michigan where detainers were placed upon him by the State of Arkansas and other jurisdictions. As a result, he was turned over to the federal authorities and eventually placed in the federal reformatory at Fort Leavenworth, Kansas, on April 13, 1969. In May the State filed a detainer warrant. On August 29, 1969, the Leavenworth authorities at appellant’s request informed the State that appellant was an inmate there, serving a ten year sentence for bank burglary. As a result of a petition for writ of habeas corpus ad prosequendum filed on September 5, 1970, appellant was returned to the State and tried at the September 1970 term of court upon the charge of burglarizing the Warehouse Market. During that trial the State was permitted to prove that appellant had also burglarized Stimson’s Super Market. The trial court permitted such evidence on the theory that it showed criminal intent.

The terms of the Crittenden Circuit Court criminal division begin on the third Monday in February and September of each year. Before appellant, a fugitive, could invoke the benefits of the two term provisions of Ark. Stat. Ann. § 43-1708, it is necessary for him to show that he has made demand for a trial, Merritt v. State, 244 Ark. 921, 428 S. W. 2d 66 (1968). We find the information forwarded by the Leavenworth officials to be woefully inadequate to constitute a demand for trial.

The trial court erred in admitting proof of the burglary of Stimson’s Super Market, see Alford v. State, 223 Ark. 330, 266 S. W. 2d 804 (1954). The proof here leaves no doubt of appellant’s intention to burglarize the Warehouse Market since he was inside, peeling the safe when he was apprehended. The injustice of permitting the State to prove the Stimson burglary in the Warehouse burglary trial, when such evidence is not otherwise admissible, is demonstrated by the fact that appellant can still be tried on the Stimson charge and receive yet another penalty, even though the jury may have been led to increase the sentence in the Warehouse trial.

Appellant raises other issues, most of which involve the proof introduced as to the Stimson burglary. Since they are not apt to arise on a new trial, we omit any discussion of the same.

Reversed.

Fogleman, J., not participating.


author: Frank Holt, Justice.

text:
    Arthur BYRD, Leona JAMES and Henry STRICKLAND v. STATE of Arkansas
    5609
    471 S.W. 2d 350
    Opinion delivered October 11, 1971

      Reinberger, Eilbott, Smith if Staten and Harold Flower, for appellants.

      Ray Thornton, Attorney General; Robert H. Crank, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellants were charged with the crime of robbery. Upon a joint trial a jury found each appellant guilty and assessed James’ punishment at 3 years, Strickland 7 years, and Byrd 5 years imprisonment in the State Penitentiary. From the judgments on those verdicts comes this appeal.

For reversal it is contended that it was error for the court to admit into evidence cross-implicating, confessions and, further, the trial court erred by refusing to give appellants’ requested cautionary instructions that any reference in a confession by one codefendant to another codefendant should not be considered by the jury.

The written confessions of appellants James and Strickland, neither of whom testified, were admitted into evidence. These confessions were cross-implicating as to each declarant and, also, as to appellant Byrd who testified and denied any complicity in the alleged crime. In the case of Mosby & Williamson v. State, 246 Ark. 963, 440 S. W. 2d 230 (1969), we held that it was prejudicial error to allow cross-implicating confessions in a joint trial, as in the case at bar, since this is violative of the basic right to be confronted by an adverse witness with the accompanying right of cross-examination as is guaranteed by the federal Sixth Amendment, Further, this resulting prejudice could not be removed by a cautionary instruction to the jury that the admission of one declarant could not be considered as evidence against a codefendant. There we also said that the answer to the problem of cross-implicating admissions would be to delete any of the offending portions with reference to a codefendant, if a deletion is feasible and could be done without prejudice, or to grant separate trials. See, also, Bruton v. United States, 391 U. S. 123 (1968) and Roberts v. Russell, 392 U. S. 293 (1968).

Reversed and remanded as to each appellant.

Harris, C. J., not participating.


text:
    Harold David EVANS v. STATE of Arkansas
    5622
    471 S.W. 2d 346
    Opinion delivered October 11, 1971

      Harold C. Rains, Jr., for appellant.

      Ray Thornton, Attorney General; Milton Lueken, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

This is an appeal from an order denying appellant’s Rule 1 petition for postconviction relief from a 21-year sentence based upon a charge of grand larceny. For reversal the appellant contends that: “The appellant has at all times insisted that he was never advised of all his constitutional rights prior to his entering a plea of guilty.” The thrust of appellant’s argument is that since he did not have the advice of counsel when he entered his plea, he misunderstood the effect of his agreed concurrent sentence, i. e., he understood that his 21-year sentence and the 17-year balance of an earlier 21-year sentence would be “over together” at the end of the 17 years. Therefore, asserts appellant, he should have had the assistance of counsel when he entered his guilty plea. We find ño merit in this contention.

At the evidentiary hearing, February 1971, on appellant’s postconviction petition he was represented by present court-appointed counsel. Appellant, 24 years of age, testified that in June 1970 he was on furlough from the State Penitentiary where he had completed four years of a 21-year sentence he had received from the Sebastian Circuit Court for armed robbery and larceny. During his furlough he allegedly committed the offenses of grand larceny (3 counts), false imprisonment, and assault with a deadly weapon. In negotiating his plea of guilty with the prosecuting officials, he understood that his single sentence on grand larceny would run concurrently with the balance of the 17 years and that he would receive no additional punishment. In other words, by accepting this concurrent sentence, he would have credit on his new sentence for the 4 years served and his total punishment would not be increased beyond the remaining 17 years. He says he agreed to this after his refusal to accept 22 years for himself and 5 years for a woman codefendant. Upon appellant’s advice and counsel, she refused a 5-year sentence and then accepted a 5-year sentence with 4 years suspended. Appellant testified that he was never advised of his right to counsel.

The docket sheet reflects that, ten days after appellant appeared in court and was advised of his rights, he entered his plea of guilty at which time he waived “all rights.” The then judge testified that it was always his policy to advise defendants of their rights to counsel. The trial judge stated that he definitely advised appellant of his constitutional rights, including his right to counsel and trial by jury, that he offered to appoint counsel and appellant “did not desire an attorney.” The judge testified that the appellant knew before he entered his plea of guilty the sentence he would receive and “he knew he was going to get additional time, that was fully explained to him when he pleaded guilty.” The trial judge testified that he was personally acquainted with appellant, and that he considered him to be “of average or above intelligence and discussed the matter in a manner that made the court know that he understood.” There was corroborating testimony adduced by the State that appellant was advised of his constitutional rights. Evidence was also adduced by the State that appellant was not a novice in the criminal courts. Appellant admitted that in at least two other cases he had experienced the advice of courts and court-appointed counsel as to his constitutional rights when he had appeared and pleaded guilty to driminal charges in the state and federal courts.

It is a firmly established rule of law that a defendant can intelligently waive his constitutional right to counsel. Wells v. State, 241 Ark. 1067, 411 S. W. 2d 529 (1967); McIntryre v. State, 242 Ark. 229, 412 S. W. 2d 826 (1967); Barger v. State, 249 Ark. 878, 462 S. W. 2d 216 (1971).

In the case at bar we think there is ample evidence to sustain the court’s findings that the appellant knowingly and intelligently waived his right to counsel after being fully advised as to the effect of his concurrent sentence. A full canvass of the record convinces us there was no violation of appellant’s constitutional rights.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    SENTRY INSURANCE COMPANY v. William McDONALD, GARLAND IMPLEMENT COMPANY, and TRI-STATE INSURANCE COMPANY
    5-5606
    471 S.W. 2d 546
    Opinion delivered October 18, 1971

      Tackett, Young, Patton & Harrelson, for appellants.

      Raffaelli, Hawkins & Carter and Wright, Lindsey ir Jennings, for appellees.
   Carleton Harris, Chief Justice.

This is a workmen’s compensation case and the sole question is which of two insurance companies is responsible for the payment of compensation benefits to an injured employee. William McDonald, an employee of Garland Implement Company, on November 27, 1968, sustained an accidental injury to the L5-S1 region of the spine. He underwent surgery in which a lumbar laminectomy was performed by Dr. Thomas Fletcher of Little Rock. McDonald was awarded a 15% permanent partial disability to the body as a whole, and this has been completely paid by appellant, Sentry Insurance Company. In September, 1969, McDonald returned to light duties at Garland Implement Company, and though still regularly visiting his doctor, worked continuously until March 5, 1970, at which time McDonald either sustained a new injury, aggravated an old injury, or simply became unable to work because of a degenerative process resulting from the November 1968 injury. In the meantime, on October 1, 1969, appellant, Sentry Insurance. Company, had can-celled its workmen’s compensation coverage with the Garland Implement Company, and this coverage had been taken over by Tri-State Insurance Company, one of the appellees herein. On April 15, 1970, Dr. Fletcher again performed an operation, this time for a large disc herniation at the L 4-5 level. At a hearing before the referee, it was held that it had not been established by a preponderance of the evidence that a new injury, or aggravation of a pre-existing condition, had occurred and the original carrier of the compensation insurance, Sentry Insurance Company, was held liable for payment. This opinion was appealed to the full commission, which affirmed the referee’s decision, and on appeal to the circuit court, the commission’s decision was affirmed by that tribunal. From the judgment of the circuit court, this appeal is prosecuted. For reversal, it is simply asserted that there is no substantial evidence to support the commission’s findings.

There is, of course, no necessity to review all of the evidence, since we are only concerned with whether there was substantial evidence to support the award. The record does disclose such evidence, which we proceed to set out.

The evidence of McDonald himself indicates that his physical difficulties continued after the first operation, and his condition was far from satisfactory for some time prior to the second reported injury. He testified that on going back to work in September of 1969 he was still having trouble with his legs, and had a “pretty bad limp”. When asked if he was still going to a doctor at that time, McDonald replied “Yes, sir, I ain’t never quit”, and he said that he had finally cut the visits down to about once a month, but commenced going back about every two weeks just prior to commencing therapy (January, 1970). When questioned about the increased visits, McDonald said, “I wasn’t getting along quite as well as he thought I ought to and I didn’t think I was either”. He stated that he had bad leg trouble, “there was a:n awful limp in it and it hurt my hip and back down into my leg and into my foot”. The witness said that he had “started getting worse”, and also had “awful nerve trouble”. In addition, he suffered neck pain and his back kept “getting worse”; his knee “buckled” causing him on one occasion to fall and receive an abrasion on his head. During the period when he was taking therapy, he went every , day, five days per week; he was also taking drugs. The incident of March 5, relied upon by appellant, occurred when McDonald started to pick up a case of oil out of the back of a truck, and he said he felt a hard pain. The witness, in comparing this incident with the original injury in November 1968, stated “Both of them were sharp pains but it seems like the first one felt like a pain . . . it felt like something just tore”. McDonald said that his doctor increased his medicine and he continued to work.

Dr. Fletcher, by letter of June 17, 1970, made the following pertinent observations.

“It is my opinion that Mr. McDonald sustained injury to both the L 4-5 and the L 5 S 1 discs at the time of the November 28, 1968 injury. * * * I think that a continued disc degeneration has been going on since the original injury and the more recent injury was only a minor precipitating factor. # * * You will note the initial myelogram in February, 1969 was interpreted by the Radiologist, Dr. Brenner as showing probable herniation of the disc at both interspaces even at that time. This view is also confirmed by my operative findings. Both discs were not removed initially because I thought the L 4-5 lesion would be able to heal. This however, was not the case and Mr. McDonald was actually having some back trouble and difficulty to a degree even before the March 5 injury.”

Appellant attacks this evidence by calling attention to a letter written by Fletcher on April 21, 1970, in which the doctor stated, referring to the first operation, “At the time of that surgery, however, no significant abnormality of the disc was found”. We do not agree that this statement has any particular significance. In the first place, Fletcher stated that McDonald probably received some injury to both disc sites originally, and he stated that the reason both discs were not initially removed was that he thought that the L 4-5 lesion would be able to heal. It simply appears that this conclusion was erroneous. Of course, in addition, any conflicts in the evidence were due to be resolved by the commission.

Additional evidence is furnished by Dr. George Brenner, a radiologist who took X-rays following the original injury, and prior to the first operation. Dr. Brenner’s report states: “IMPRESSION: Probable herniation of the nucleus pulposus on the left at both the L 4-5 and L5-S1 interspaces.”

As stated, there is no need to discuss appellant’s evidence, for even though, on the evidence as a whole, we disagreed with the commission’s findings, such findings would still have to be upheld. No citation of authority is necessary to reiterate that the commission is the fact finder in compensation cases, and not this — nor any other — court.

Affirmed.


author: George Rose Smith, Justice.

text:
    James Hugh RIDGEWAY v. STATE of Arkansas
    5628
    472 S.W. 2d 108
    Opinion delivered October 18, 1971
    [Rehearing denied November 22, 1971.]

      Kenneth Coffelt, for appellant.

      Ray Thornton, Atty. Gen., by: John D. Bridgnorth, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant was convicted of assault with intent to kill and was sentenced, as a habitual offender, to imprisonment for 21 years. His contentions for reversal may be grouped together as two separate points.

First, the information, in charging an assault with the intent to kill Gene Ray Cannon, asserted that the assault had been made with a deadly weapon, namely, a knife. The State’s proof, however, was that Ridgeway shot Cannon twice with a pistol and that it was a co-assailant, Butch Vaughn, who cut Cannon with a knife. The appellant, citing Clemons v. State, 150 Ark. 425, 234 S. W. 475 (1921), and similar cases, insists that there was a fatal variance, entitling him to a directed verdict in the court below.

That argument is not sound. In the Clemons case the indictment charged that the accused stole two cows belonging to George Carlson, but the proof was that the accused stole a steer belonging to Carlson. We held that the offense proved was not the offense charged. Similarly, we found a fatal variance between an indictment charging the theft of “one cow, the property of Joe Randolph,” and proof showing the theft of one cow belonging to Mrs. F. S. Randolph. Von Tonglin v. State, 200 Ark. 1142, 143 S. W. 2d 185 (1940). The distinguishing fact in such cases is that two essentially different crimes are involved.

Here the only crime charged was assault with the intent to kill Gene Ray Cannon. It was not necessary for the information to include a statement of the act constituting the offense. Ark. Stat. Ann. § 43-1006 (Repl. 1964); Cluck v. State, 192 Ark. 1036, 96 S. W. 2d 489 (1936). If the appellant’s present objection had been made in the trial court, the prosecution would have been entitled to amend the information, since an amendment describing the deadly weapon as a pistol instead of a knife would not have changed the nature of the crime or its degree. Ark. State. Ann. § 43-1024; Lee v. State, 229 Ark. 354, 315 S. W. 2d 916 (1958); Tate v. State, 204 Ark. 470, 163 S. W. 2d 150 (1942). The appellant, however, made no objection in the trial court to the variance between the information and the proof, nor did he plead surprise. In fact, his only possible reference to the matter was his motion for a directed verdict at the close of the State’s case. No reason was assigned for the motion, and as we have seen, if the present objection had been made the defect in the information could readily have been corrected by amendment. We find no error.

Secondly, the appellant questions the validity of our habitual-criminal statutes and the manner in which they were applied in this case. The constitutionality of such acts has long been sustained. Ferguson v. State, 249 Ark. 138, 458 S.W. 2d 383 (1970). Such stautes are not regarded as ex post facto laws, because the increased penalty is considered to be imposed only as punishment for the offense on trial, not for the earlier ones.

In the case at bar the information charged Ridgeway as a habitual offender who had committed nine other felonies. At the close of all the proof the court submitted to the jury the question of guilt or innocence, along with an instruction authorizing the jury to impose a sentence of from one to twenty-one years, that being the range of punishment for a first offender. Ark. Stat. Ann. § 41-606 (Repl. 1964). The jury returned a verdict of guilty and fixed the punishment at imprisonment for nine years.

The State was then permitted to show that Ridge-way had previously been convicted four times for forgery, four times for uttering a forged instrument, and one time for burglary. The court then sent the jury out again, with instructions that if Ridgeway was found to have been guilty of four or more previous offenses, the punishment would range from a minimum sentence of twenty-one years to a maximum of thirty and a half years. The jury then returned a verdict assessing the punishment at twenty-one years.

No prejudicial error is shown. The trial court, in originally submitting the issue of guilt or innocence along with the punishment for a first offender, stated that he was following our holding in Miller v. State, 239 Ark. 836, 394 S. W. 2d 601 (1965). That procedure, however, was modified by Act 639 of 1967, which contemplates that only the issue of guilt or innocence upon the current charge will be considered by the jury upon its first retirement to the jury room. Ark. Stat. Ann. § 43-2330.1 (Supp. 1969). The court therefore should not have submitted any issue of punishment in the first instance. There was obviously no prejudice, however, because the twenty-one year sentence imposed by the jury was the minimum permissible sentence for assault with intent to kill when committed by one who had been guilty of four or more earlier offenses. Ark. Stat. Ann. § 43-2328 (3) (Supp. 1969). Thus the absence of prejudice affirmatively appears.

Affirmed.


author: Lyle Brown, Justice.

text:
    Dovie Marie McGINNIS v. STATE of Arkansas
    5635
    471 S.W. 2d 539
    Opinion delivered October 18, 1971

      H. Allen Dishongh, for appellant.

      Ray Thornton, Attorney General; Milton Lueken, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant was convicted of forgery and punishment was fixed at two years in the State Penitentiary. The appeal is grounded on the theory that the trial court erred in refusing to suppress certain evidence which appellant alleged was illegally obtained.

The prosecuting witnesses were husband and wife and they had a joint account at Worthen Bank and Trust Company. They had a book of personalized checks which disappeared from their car in August 1970. During that month a check with the prosecuting witnesses’ names printed thereon was cashed at Shainberg’s store in North Little Rock. The woman cashing the check executed it in the presence of the associate manager. She signed the name “Mrs. Mildred L. Hays,’’ one of the prosecuting witnesses. Underneath the signature the maker wrote the number of Mrs. Hays’s driver’s license. When the check was returned for suspected forgery, Shainberg turned the instrument over to the North Little Rock Police Department. The check was transmitted to the FBI laboratory in Washington to be inspected for fingerprints. The FBI reported that a thumb print of appellant, Dovie Marie McGinnis, was discernible. On the basis of that information Officer Scharfenberg began a search for appellant. Eventually she was located at a beauty school in North Little Rock.

The crux of this appeal surrounds the events which transpired at the time of arrest. Appellant contends that (1) she was placed under detention without a warrant and in the absence of probable cause, and (2) the detention was in fact for the purpose of obtaining additional evidence to establish a charge of forgery against appellant.

We cannot say the trial court erred in finding the existence of probable cause. The officer had in his possession a check shown with reasonable certainty to have been forged. The forger was known to be a female Caucasian, as was appellant. The personalized check was undoubtedly one of those checks which disappeared from the Hays car. The only significant fingerprint found on the check was that of appellant. Appellant was identified from pictures as having been in Shainberg’s. It may also have been significant that the officer, with ten years experience, knew appellant on sight. That evidence was sufficient to raise “a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe the accused committed a felony.” We have approved that definition of probable cause. Johnson v. State, 249 Ark. 208, 458 S. W. 2d 409 (1970).

Irrespective of probable cause, appellant contends that she was not placed under arrest for forgery, that she was taken into custody for the purpose of obtaining additional information to support a suspicion of forgery. The recited allegation centers around the testimony of Sgt. Scharfenberg. Here are the pertinent excerpts from his testimony before the examining magistrate. On direct examination he testified that he went to the beauty shop and placed appellant under arrest. Then on cross-examination he testified:

Q. What was your purpose in going into the shop?
A. To arrest her.
Q. On what basis?
A. Probable cause in a forgery case.

Later in the proceeding he testified on further cross-examination that the purpose of the arrest was to obtain samples of appellant’s handwriting:

Q. By your own testimony, the purpose of the arrest was not for forgery and uttering but to obtain further evidence?
A. Yes, sir.

At the trial in circuit court, Scharfenberg said positively that when he went to the beauty parlor he informed appellant she was under arrest for forgery and that he forthwith took her to the police station and booked her on that charge. He said the police records would bear out his testimony. On cross-examination the witness conceded that he made the statement attributed to him at the preliminary hearing but insisted that he could explain any ambiguity between his testimony at the two hearings. He was not called upon to give that explanation.

The recited testimony was first developed in an in camera hearing and the trial court was asked to hold as a matter of law that the purported arrest was illegal and that the handwriting specimens obtained from appellant during subsequent custody should be excluded. The court declined to so hold. The question of incidents surrounding the arrest was then developed before the jury and was further pursued in closing argument. Both the judge and the jury rejected appellant’s theory that appellant was not under arrest when the exemplars were taken. It having been shown that appellant was under arrest for forgery, the taking of handwriting exemplars did not offend appellant’s Fifth Amendment privilege against self-incrimination. It (a handwriting exemplar) has been described as “an identifying physical characteristic” outside the protection of the amendment. Gilbert v. California, 388 U. S. 263 (1967).

Affirmed.


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

text:
    Charles DURHAM v. STATE of Arkansas
    5601
    471 S.W. 2d 527
    Opinion delivered October 18, 1971

      Ponder, Lingo ir Hilburn, for appellant.

      Ray Thornton, Attorney General; Milton R. Lueken, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant Charles Durham was convicted of the burglaries on May 25, 1970, of the dwelling houses of E. C. Hardin and Neal James located in the same farming community in Sharp County. The separate burglary charges were consolidated for trial by agreement. Property taken from the Hardin home included a .22-caliber and a .30-.30 Winchester rifle. A .30’06 rifle was among the articles taken from the James residence. Before trial, appellant moved to quash warrants for the search of the truck, residence, bam and premises of appellant in Lawrence County issued by Lucian J. Lee, a justice of the peace of that county. Appellant’s motion asked that the evidence obtained on the basis of the warrants be suppressed. This motion was denied, and the tangible evidence found by the officers was admitted during the trial.

Appellant asks us to reverse his conviction because there was no adequate foundation for the issuance of the warrants. Specifically, appellant argues that probable cause for the issuance of the warrants was not shown by affidavit or evidence under oath. We agree with this contention and with appellant’s further argument that the evidence to which he objected was inadmissible as “fruit of the poisonous tree.”

One of the affidavits was made by Sheriff Ray Martin of Sharp County. In it, the sheriff merely stated that he had good reason to believe that, on May 23, 1970, Charles Durham broke into, entered and carried away from the home of Neal James a Zebco reel, a 12-gauge shotgun, a .22 automatic rifle and a .30’06 rifle. In the other, E. C. Hardin swore that Durham committed burglary by breaking and entering affiant’s residence and removing a .22-caliber Stevens automatic rifle, a .30-.30 caliber lever action Winchester saddle gun, and a .303-caliber British rifle.

Testimony on the motion to suppress showed substantially the following:

E. C. Hardin saw Durham pass the Hardin residence on Saturday, May 23, and subsequently saw Durham in the vicinity several times. Hardin took the license number of the pickup truck in which Durham was traveling. He could see no gun in Durham’s truck on that day. On Sunday morning after the burglaries, Sheriff Martin ascertained that the license number was issued in Lawrence County. He and his deputy, Frolis, picked Hardin up and drove to that county. Hardin saw the truck at Durham’s mother’s house in Lynn. When the officers approached the truck, two men got out of it. As they were talking to the officers, Hardin moved closer to the truck and saw his .22-caliber rifle in open sight in a rack in the truck. He pointed out the rifle to Deputy Sheriff Frolis and identified it. Possession of the rifle was then taken by Frolis. Hardin stated that he read, signed and swore to the affidavit for a search warrant after Lee wrote it out. He testified that he had told Justice Lee the same things that he had testified at the hearing.
Sheriff Martin testified that he had written out the other affidavit and that Lee had sworn him to it. He also said that he and Hardin told Lee the same things they had stated in their testimony at the hearing.
After the affidavits were made, Lee issued the search warrants. Martin, Frolis and Hardin proceeded to the Durham residence, where Sheriff Guthrie of Lawrence County was awaiting their arrival. One of Sheriff Guthrie’s deputies read the warrants to Durham. The weapons were not found in the house, and the testimony as to whether the house was actually entered is somewhat conflicting and confusing. At any rate, while the officers were in the yard surrounding the Durham residence, one or more of them detected a fresh trail leading from the back comer of the yard into a. field in which fescue was growing knee-deep. Upon following this path for about 200 yards, the officers found nine guns, two of which were described in the search warrants and were later identified as having come from the two residences which had been burglarized. The yard had been mowed and was fenced. The field constituted a part of the Durham place on which the house was located and of which the yard was also a part.

It is elementary that a valid search warrant cannot be issued except upon probable cause determined from facts and circumstances revealed to the issuing magistrate under oath or affirmation. Walton v. State, 245 Ark. 84, 431 S. W. 2d 462. The determination may not be based upon conclusions of those seeking the warrant. Walton v. State, supra; Bailey v. State, 246 Ark. 362, 438 S. W. 2d 321. While the facts supplied in a written affidavit may be supplemented by oral testimony, these additional facts must be disclosed from testimony given under oath. Walton v. State, supra.

It is clear that the affidavits in this case stated mere conclusions of the respective affiants, so the warrants were not valid, unless the magistrate could have found reasons for those conclusions from testimony of Martin and Hardin given under oath. We have no doubt that statements made by these witnesses to Lee would have furnished sufficient basis for the finding of probable cause for issuance of a valid search warrant. The determination of this critical question turns upon the testimony of Lee. The pertinent part of his testimony follows:

Q. How did you come to issue those Search Warrants — what caused you to issue them, in other words?
A. By the complaint of Mr. Hardin and the Sheriff of Sharp County making requests for the issuance of the Warrants under the Affidavits.
Q. Was there anyone besides those two men?
A. No, sir.
Q. And we are talking about Mr. Hardin and Sheriff Martin?
A. Yes, sir.
Q. Did they come to your home?
A. They did.
Q. Did Sheriff Martin make a request of you for a Search Warrant?
A. He did.
Q. Did Mr. Hardin make a request of you for a Search Warrant?
A. He did.
Q. Did each one of them then sign an Affidavit for a Search Warrant?
A. They did.
Q. Did you swear them at the time they signed to the Affidavits that they signed?
A. I did. In addition I swore them to testify to that as well as signing the Affidavits for the Warrants, which states, “I do solemnly swear that the allegations set forth are true to the best of my knowledge and belief.” You know what the form is on the affidavit for procuring a Warrant?
Q. Yes, sir.
A. But in addition to that, I administered an oath to them to testify to the fact or the reasons that they wanted the Search Warrant. They swore the facts contained in there were so.
Q. You mean that the facts contained in the Affidavits were true?
A. Yes, sir. In other words, there was a double oath. The one that they signed on the form and then the one that I administered to them.
Q. Le me see if I am completely clear on this, Mr. Lee. You have the Affidavits with you, don’t you?
A. I do.
Q. All right, if you will', get those out, Mr. Lee, so both of us can follow along on the same thing. On the affidavit that was made by Mr. Hardin—
A. All right.
Q. Are you talking about the line on the bottom where it says, "Sworn to and subscribed before me this 24th day,” No, I think I see now what you are talking about at the top there where it says, "I, E. C. Hardin, do solemnly swear,”—
A. That’s right.
Q. Is that writing there those words which say, “do solemnly swear,” on the affidavit, was that one of the things you were referring to that was an oath?
A. Yes sir.
Q. Then you said there was something else — in addition to the wording on the paper that they signed, do I understand that either before they signed or after they signed that you- then had each one of them hold up his hand—
A. And swear—
Q. And swear that what was on the paper, that is, what was written in this Affidavit—
A. Yes, sir, that the allegations set forth to their knowledge and belief was true.
Q. As set forth in the Affidavit?
A. That’s right.
Q. And is that true of both Mr. Hardin and Mr. Martin?
A. It is.
Q. Were they put under oath by you or sworn by you at any other time while they were at your house in connection with these search warrants?
A. No, sir, that was the only time.

We do not think that this evidence justifies any inference that the oral statements made by the complainants were under oath. We take this testimony to mean that Martin and Hardin swore that what was written in the respective affidavits was true but that they were not put under oath or sworn by the magistrate at any other time. The reference to double oaths was explained by | Lee to refer to the written oath and the oral oath, but both related only to the allegations of the respective affidavits. Because we take the evidence to show that the complainants were not under oath when they gave the supplemental testimony, the warrants were not valid.

If the rifles had been found in the Durham field without a warrant and without an entry of the yard around the Durham house by the officers, there is little room for doubt that their seizure would have been justified as the fruit of a valid “open-field” search. See Jones v. State, 246 Ark. 1057, 441 S. W. 2d 458. The evidence before us, however, clearly shows that the trail or path from the yard was discovered by the officers only after their entry under the invalid search warrant. There is no evidence that the trail could have been seen from any place other than the yard. Unlike the field where the rifles were found, this yard was the curtilage of the Durham dwelling and, as such, subject to the same constitutional protection as the house itself. McDowell v. United States, 383 F. 2d 599 (8th Cir. 1967); Wattenburg v. United States, 388 F. 2d 853 (9th Cir. 1968).

The exclusionary rule which has long operated to bar tangible materials obtained as the direct result of an unlawful invasion has been extended to apply to those found as an indirect result. Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); Walton v. State, 245 Ark. 84, 431 S. W. 2d 462.

If the evidence to which objection is made has been obtained by exploitation of a primary illegal police action rather than by means sufficiently distinguishable to be purged of the primary taint, it is to be excluded as “fruit of the poisonous tree.” Wong Sun v. United States, supra; Walton v. State, supra. It is true that the burden was upon Durham to convince the court that the evidence was inadmissible under this doctrine. Walton v. State, supra. But the evidence can only be taken to show that the discovery of the rifles in the “open field” was an exploitation of the invalid search warrant. There is no evidence which would justify an inference that the rifles were or could have been discovered without entry upon Durham’s curtilage. In various applications of the “poisonous tree” doctrine, it has been held that seizure of objects in “plain view” cannot be justified if the seizing officers had to physically invade a constitutionally protected area in order to secure the view. United States v. Davis, 423 F. 2d 974 (5th Cir. 1970); McGinnis v. United States, 227 F. 2d 598 (1st Cir. 1955); Commonwealth v. Watkins, 217 Pa. Super. 332, 272 A. 2d 212 (1970); State v. Hagen, 258 Iowa 196, 137 N. W. 2d 895 (1965). We can see no difference in application of the doctrine in “plain view” cases and in those such as this, where the information utilized by the officers to discover tangible evidence was the direct result of an unauthorized entry upon the curtilage of a suspect.

In the light of our conclusion, the convictions must be reversed. For this reason, we do not consider appellant’s other point for reversal — that a new trial should have been granted because one who had been appointed deputy sheriff served as a juror. It is highly improbable that this question would arise upon a new trial.

The judgments are reversed and the case remanded for new trial.

Harris, C. J., and Jones, J., dissent.

J. Fred Jones, Justice

dissenting. I do not agree with the majority opinion in this case. There is no question that Sheriff Martin as well as Hardin related to Justice Lee all they knew about the case in explaining to him why they suspected the appellant as the burglar, and why they suspected that the appellant had the remainder of the stolen articles concealed on his premises. There is no question that they gave Justice Lee probable cause and reasonable grounds for issuing the search warrant. The majority opinion recognizes this, but seems to conclude that the witnesses were under oath to only so much of the information Justice Lee wrote into the paper affidavit forms. The majority opinion seems to turn on whether Justice Lee first took the information under oath and then wrote all, or a part of it, into the affidavit forms which were subscribed and sworn to, or whether he first wrote out the information on the affidavit forms which were then subscribed and sworn to. The search warrant itself was regular and valid on its face. Its validity was approved by the magistrate who issued it, and its validity was approved by the circuit judge who saw and heard the witnesses as they testified at the hearing on the motion to suppress.

Justice Lee did not have printed affidavit forms for search warrants but he did have printed affidavit forms for arrest warrants. So he attempted to use a handwritten form prepared by the sheriff and also printed affidavit for arrest forms which he attempted to convert into affidavit for search warrant forms. At the heáring on the motion to suppress Sheriff Martin testified:

“This is handwritten because the Justice of the Peace did not have a form affidavit for a search warrant. The affidavit originally was for a warrant of arrest and he added 'and search’ and, of course, the handwritten affidavit is the one that I made. It is in my writing and is signed by me and sworn to before the Justice of the Peace.
Q. It was sworn to by you?
A. Yes, sir.
# # #
Q. I believe I understood you to say that the Justice swore you to your affidavit?
A. Yes, sir.
Q. Was it on the basis of your handwritten affidavit here that the Search Warrant was issued that we are now using in Case No. 52?
A. We told him the same story that we have told you. In other words, we told him why we were there.”

Mr. Hardin testified to the above facts as to reporting the license number to the sheriff and subsequently identifying his stolen .22 rifle in the back of the appellant’s pickup truck, after which he went with Sheriff Martin to Justice Lee’s home to obtain the search warrant for the search of appellant’s premises. In this connection Mr. Hardin testified, in part, as follows:

“Q. Then did you .go over to Justice Lucien Lee’s house?
A. Yes, sir, and signed this right here.
Q. You are pointing there to an affidavit that you made?
A. Yes, sir.
Q. Who wrote that out, Mr. Hardin?
A. Lucien Lee, I suppose.
Q. Well, you should—
A. Well, I seen him writing and I read it.
Q. Sir? You were there?
A. Yes, sir, Lucien Lee.
Q. Lucien Lee wrote it out?
A. Yes, sir.
Q. Then, what did he do with it?
A. Had me to sign it and Sheriff Martin took it.
Q. Did Squire Lee swear you to that affidavit?
A. Yes, sir.
Q. Had you hold up your hand?
A. Yes, sir.
Q. And then that affidavit there would be what he issued this Search Warrant on I suppose?
A. Yes, sir.
Q. Would that be right?
A. I suppose that’s right, yes, sir.”
(Emphasis added).

Now the affidavit form prepared in longhand recites that Ray Martin, sheriff of Sharp County, states on oath that he has good reason to believe that on May 23, 1970, Charles Durham broke and entered and carried away property from the home of Neal Hames (another prosecuting witness whose house had been burglarized on the same afternoon). A blank affidavit for warrant of arrest (and search) was also signed by Sheriff Martin and sworn to before Justice Lee. The affidavit form signed and sworn to by E. G Hardin is on an affidavit for warrant of arrest form with the words “and search” added. This form is filled out to the effect that on the 23rd day of May, 1970, Charles Durham committed the crime of burglary by breaking and entering Hardin’s residence and unlawfully removing therefrom a .22 caliber automatic rifle, a 30-30 caliber lever action Winchester Saddle gun and some other specifically described property. The printed affidavit form (originally an affidavit for arrest form), in the printed portion, prays a warrant from Lucien J. Lee, Justice of the Peace, to apprehend said Charles Durham (the appellant) to be dealt with according to law. This form was subscribed and sworn by Mr. Hardin before Justice Lee.

The majority view seems to be that Justice Lee either put everything into the affidavit forms that was testified to under oath by Sheriff Martin and Mr. Hardin, or that he was required to do so before he could issue a valid search warrant. I do not have such view. It is my view that Justice Lee was not required to try the defendant in Absentia with a complete record of the evidence transcribed in the affidavit form, neither was it necessary for Justice Lee to be convinced beyond a reasonable doubt. It is my view that an affidavit for a search warrant is primarily for the information and benefit of the magistrate who has been requested to issue such warrant, and it is my view that a form affidavit is not necessary for the procurement of a valid search warrant in every case. It is not required by the constitution and was not required by statute when the warrant in this case was issued.

Amendment 4 of the United States Constitution and Art. 2, § 15 of the State Constitution having to do with unreasonable searches, for all practical purposes are identical. The language of the state provision is as follows:

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

Ark. Stat. Ann. § 43-201 (Repl. 1964), under which the warrant in this case was issued, provides as follows:

“Upon complaint being made on oath, before any officer authorized to issue process for the apprehension of offenders, that any personal property has been stolen or embezzled, and that the complainant suspects that such property is concealed in any particular house or place, if such officer shall be satisfied that there is reasonable ground for such suspicion, he shall issue a warrant to search for such property.”

Thus it is my opinion that all the constitution requires is “probable cause supported by oath or affirmation,” and all that the statute requires is a “complaint . . . made on oath.” Justice Lee made out the search warrant on the basis of the complaint made to him by Sheriff Martin and Mr. Hardin, they were his only source of information. There is nothing in the record indicating that Justice Lee had any personal interest in the case or knew anything about the facts other than those furnished by the complainants. The majority seem to concede that Justice Lee had reasonable grounds for suspicion, as set out in the warrant, but conclude that grounds stated were not stated under oath. Justice Lee states otherwise in the face of the warrant. The search warrant issued by Justice Lee recites as follows:

“Whereas, Complaint has been made, on oath, before the undersigned, one of the Justices of the Peace in and for the County of Lawrence by E. C. Hardin that certain property of his, to-wit: One 22 Cal. Automatic Steven Rifle, one 30-30 Cal. Lever Action Winchester Sadie Gun, and one 303 Cal. British Rifle, with Bayonet block removed, and stock forearm shortened, and hole where sling strap was inserted, filled with plastic wood, has been stolen, or embezzled, and that the said complainant suspects that such property is concealed in the House, Car, Truck, barn or 'upon the premises or other property occupied by Said Charles Durham in said County; and Whereas, Being satisifed that there is reasonable ground for such suspicion YOU ARE THEREFORE HEREBY COMMANDED, To search the said place above mentiond, where such property is suspected to be concealed, in the any hour of day or night, including Sunday, and to bring such property or any part thereof, which may be found, before me, the said Justice, forthwith. Hereof fail not, and make return of this writ.” (Emphasis added).

This is not a case where the complainant seeking a search warrant did so on “information and belief” obtained from an undisclosed confidential source as was the situation in Walton v. State, 245 Ark. 84, 431 S. W. 2d 462. The information presented to the Justice of the Peace in the case at bar was based on the eye witness account of Mr. Hardin, who had seen the appellant’s truck leave his home in Sharp County; and immediately thereafter he found that his home had been burglarized and his rifles stolen. The very next day he saw with his own eyes the appellant in possession of one of his stolen rifles near appellant’s home in Lawrence County and he so advised Justice Lee when he requested the search warrant.

With the above background, I now come to the crux of my disagreement, which lies in the interpretation of Justice of the Peace Lee’s testimony. Justice Lee apparently felt that some paper affidavit form bearing a jurat was necessary and it is clear to me that he recognized that the forms he had were inadequate for the purpose. As I interpret his testimony, he not only attempted to prepare paper affidavit forms and have the complaining witnesses sign them under oath, but that the oath, or oaths, he administered also covered the information furnished him as a basis for the search warrant he issued, and was not restricted only to that portion of the information or testimony he wrote into the affidavit forms. That part of Justice Lee’s testimony from which I reach my conclusion, is italicized in his testimony, as follows:

“Q. Did you swear them at the time they signed to the affidavits that they signed?
A. I did. In addition I swore them to testify to that as well as signing the affidavits for the Warrants, which states, ‘I do solemnly swear that the allegations set forth are true to the best of my knowledge and belief.’ * * * But in addition to that, I administered an oath to them to testify to the fact or the reasons that they wanted the Search Warrant. * * * In other words, there was a double oath. The one that they signed on the form and then the one that I administered to them.
# # #
Q. . . . Judge Lee, let me put the question this way and maybe I can keep from going back over all that has been testified to and tie it right down. Was the reason that these gentlemen gave you for wanting the Search Warrant for the Durham house, was that reason based on what they told you had happened a day or two before that that led them to suspect that Durham might be guilty of stealing some guns and had directed their attention toward him as being the possible guilty party — was that the kind of reason that they gave you for the search warrant?
A. That’s right, and also finding an automatic rifle that was owned by Mr. Hardin in Mr. Durham’s truck as it passed through Linn.
Q. But still if I understand you, that was the kind of reason that they gave for the search warrant?
A. Yes, sir.
Q. And there was nothing — there was no particular reason they thought that Durham’s house or barn or premises might have some stolen property on it except simply that they suspected Durham, would that be about the—
A. That would be about the substance of it other than there were other guns aside from this automatic .22 rifle that they found in his truck. You know, he recognized it so he testified before me and told me in procuring the warrant, Mr. Hardin did, that he recognized the .22 automatic rifle in Durham’s truck and then there were some others stolen from him that was embodied in the search warrant and they wanted a search warrant to obtain those guns or the property, if possible.
Q. Are the other guns that you are talking about there the ones that were described in the search warrant?
A. Yes.
Q. Did either of the men give you any reason why they thought the stolen property would be found on the Durham farm other than adjoining farms except for the fact that they suspected Durham pretty strongly and this was his farm and premises?
A. That’s right and finding the gun in his possession.
Q. The finding of the gun was what directed their suspicion toward Durham?
A. That’s right.” (Emphasis added).

It appears to me that the majority opinion in this case continues to muddy the already clouded 4th Amendment waters. (See concurring and dissenting opinions in Coolidge v. New Hampshire on certiorari to Supreme Court of New Hampshire, June 21, 1971). Law enforcement officers, including Justices of the Peace and magistrates, should not be required to search the unfamiliar and unclear depths of Supreme Court decisions for precise, and court approved language, to be incorporated into affidavits for search warrants before a valid search warrant can be issued.

The great differences in judicial opinion on questions of constitutional interpretation seem to arise from the so-called “strict” as opposed to “liberal” interpretation of its provisions. I recognize a possibility that under strict construction the constitution could be interpreted into a hard and rigid shell with the benefits of its provisions alienated and cut off from the people it was intended to protect and from the purposes it was intended to serve. I also recognize a possibility that through liberal construction the constitution could be interpreted into an instrument having the qualities of a mirror wh^ch would only reflect the changing views and philosophies of those charged with the responsibilities of looking into its provisions. Consequently, I accept strict construction as carrying the lesser evil of the two possibilities.

It is my opinion that when a man’s house has been burglarized and his goods hauled away in a particular truck, and when the driver of that truck later flaunts a part of the stolen goods before the eyes of the victim of the burglary, the victim is justified in suspecting the truck driver as the felon, and is also justified in suspecting that he has the remainder of the stolen goods secreted on his premises. It is further my opinion that when such facts are made known by a complaint under oath, before a magistrate, the magistrate has probable cause to issue a search warrant for the search of such premises.

When armed with a search warrant regular and valid on its face, it is my view that police officers should not be made unlawful trespassers in a search for stolen property by ambiguous testimony as to what specific portions of the information furnished the issuing magistrate were under oath and what portions were not. It is my opinion that the constitution contemplates no such procedure nor does the statute require it. Probable cause supported by oath or affirmation, and a complaint being made on oath, is all that should be required. It appears to me that the rule of evidence so recently recognized as “the fruit of a poisonous tree” has found fertile ground in the 4th Amendment and if permitted to grow and multiply unchecked, could easily obliterate the 4th Amendment or stunt and warp its purpose beyond recognition. I am of the firm opinion that both the constitutional and statutory requirements were fully met and complied with in this case; and that the .22 rifle, as well as the other objects of the search, was admissible in evidence against the appellant.

I would affirm.

Harris, C. J., joins in this dissent.

      This probably is not permissible under Act 123 of 1971, which became effective after the issuance of these warrants.


author:
John A. Fogleman, Justice.
      Conley Byrd, Justice,

text:
    Lyndale “Wimpy WALKER v. STATE of Arkansas
    5626
    471 S.W. 2d 536
    Opinion delivered October 18, 1971

      Leonard C. Smead, for appellant.

      Ray Thornton, Attorney General; John D. Bridgforth, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant Walker was convicted of burglary and grand larceny in a jury trial on September 9, 1970. He was then represented by employed counsel of his own choice. On November 6, 1970, Walker filed his handwritten petition for postconviction relief under Criminal Procedure Rule No. 1. The circuit judge denied this petition on the same date, without any evidentiary hearing, and filed detailed written findings of fact and conclusions of law. We find the requisite record support for the court’s ruling as to four of the five grounds alleged by appellant. As to the remaining ground, we find that appellant should be granted an evidentiary hearing because of lack of support in the record for the findings by the trial judge.

Appellant’s contention that a confession was illegally obtained from him by means of threats was an issue which was resolved against him during his trial, after a full hearing by the circuit judge in the absence of the jury. The judge’s findings made then were sufficiently supported by evidence. Appellant asserted nothing in his petition on this ground that was not asserted during his trial.

Another ground was that evidence seized through an illegal search was admitted. There was evidence showing that the seizure was made after appellant’s wife invited the officers into the house where she and appellant lived, and the search was conducted with her permission. This evidence was not denied, even though both appellant and his wife testified in the case. Such a search was not constitutionally unreasonable. Asher v. City of Little Rock, 248 Ark. 96, 449 S. W. 2d 933. It was probably for this reason that no objection was made to the introduction of this evidence. Furthermore, appellant testified in his own defense that he had possession of the seized articles by virtue of his purchase of them from one Jimmy Stinnett. Appellant is in no position to raise this question now.

Appellant’s contention that excessive bail was demanded of him is little more than his bare conclusional statement. Standing alone, it is hardly a sufficient allegation to support a collateral attack on his sentence. A hearing on this point would not be justified.

The following findings by the circuit court relating to appellant’s contention that he was not afforded a speedy trial and that the jury was handpicked clearly justify denial of a hearing on those points:

The prisoner next seeks relief on a right to a speedy and public trial and that the jury was handpicked by the prosecuting attorney. The record reflects that there were present twenty-nine prospective jurors at the time the jury panel was sworn and having been called one at a time in numerical order, the record reflects that twelve jurors were selected. The State exercised one peremptory challenge and the defendant none. The prisoner cannot now complain of a jury for which he did not exercise any of his eight peremptory challenges.
This prisoner was committed to the State Hospital immediately after being incarcerated, and upon the first setting of such case for trial the defendant had escaped from the jail and was later tried as early as the Court calendar would permit, and the defendant physically present.

The fifth point raised by appellant is rather vaguely stated in appellant’s handwritten petition. He alleges that he had been threatened with a long term in prison, was in a “state of demented capacity” during his trial and incapable of deliberating soundly upon his acts. This statement is broad enough to encompass a contention that appellant was mentally incompetent at the time of trial, to the extent of inability to participate in his defense. We are unable to find support in the record for the trial court’s finding on this point. In pertinent part, it is:

On the same day that the jury returned the verdict of guilty as aforesaid, the prisoner in the presence of his attorney waived the time for being sentenced and requested the Court to sentence him at this time. Upon the Court sentencing the prisoner, the prisoner and his attorney plea-bargained with the prosecuting attorney and worked out pleas of guilty on some seven or eight other cases, heretofore enumerated, for which he entered pleas of guilty, and that such sentences ran concurrently with the sentence aforesaid, excepting one sentence of five years which ran consecutively, making a total sentence of fifteen years.

A motion for relief under Criminal Procedure Rule 1 can only be disposed of without a hearing when the motion, files and records of the case conclusively show that the prisoner is entitled to no relief. In this instance the circuit court’s denial of the motion was based not only upon the judge’s own observations and his evaluation of petitioner’s actions but also upon matters which do not appear in the record before us. Unless we can say that the motion itself shows that petitioner was entitled to no relief, he is entitled to an evidentiary hearing on .his petition. We cannot say that the fifth ground of the petition fails to state a ground for collateral attack on the sentence or that either the motion or the record discloses that petitioner is entitled to no relief.

Petitioner’s allegations on this fifth ground, although ineptly stated, can only be construed to constitute a prayer for relief from the sentence imposed because of insanity at the time of the trial and sentencing. Apparently, he is also asserting that his lack of mental capacity was attributable, at least in part, to duress by reason of having been threatened with a long prison sentence. Possibly, his allegation as to this threat should also be taken as an excuse for his condition not having been made an issue either at the time of trial or at the time of his sentencing. It does not appear from the record that petitioner’s sanity either at the time of the offenses charged or at the time of trial or sentencing was in issue. The circuit judge noted that petitioner was committed to the state hospital when first incarcerated, but the record discloses neither an order of the court nor the result of the commitment. *

Long before the adoption of Criminal Procedure Rule 1, attacks upon sentences after the expiration of the terms at which they were imposed have been permitted to afford relief whenever a defendant was insane at the time of his trial or sentence, if the fact was not then made known to the court. This was originally accomplished through the writ of error coram nobis. Adler v. State, 35 Ark. 517, 37 Am. R. 48; Howard v. State, 58 Ark. 229, 24 S. W. 8; Linton v. State, 72 Ark. 532, 81 S. W. 608; Johnson v. State, 97 Ark. 131, 133 S. W. 596; Hodges v. State, 111 Ark. 22, 163 S. W. 506; Smith v. State, 200 Ark. 767, 140 S. W. 2d 675. It was recognized in Howard and Linton that this writ had been rendered virtually obsolete through disuse, but that the same relief could be had on motion. Denial of such a motion without any hearing was held erroneous in Hydrick v. State, 104 Ark. 43, 148 S. W. 541.

Criminal Procedure Rule 1 was adopted, not only to afford postconviction relief where no established procedure existed, but to avoid technical niceties in existing procedures. Petitioner has clearly, though inartistically, stated a ground for relief under our rule which cannot be denied under subsection (C) of the rule.

The judgment on the petition is reversed and the’■ case remanded for further proceedings not inconsistent with this opinion.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. I disagree with the majority on the remand for an evidentiary hearing on petitioner’s demented condition.

When we remember that the record shows that immediately after this man’s arrest, he was sent to the State Hospital for a mental examination and returned for trial, we know from prior experience and the requirements of our laws that if the State Hospital had found other than that petitioner was without psychosis, the record would have shown such proceedings. Thus it appears to me that we are overtechnically overworking society by requiring it to hold a post conviction hearing to make a finding of fact that is evident from the beginning.

For this reason I respectfully dissent.

      We do not consider as a part of the present record appellant’s response to written inquiries by his attorney appointed for this appeal. The inquiry was made some six months after entry of the court’s order. In it appellant enlarges upon the allegations of his petition.