author: Ed. F. McFaddin, Associate Justice.

text:
    Hope v. Hall, Secy, of State.
    5-1734
    316 S. W. 2d 199
    Opinion delivered September 29, 1958.

      Pope, Pratt & Shamburger, for plaintiff.

      Joe C. Barrett, J. Glib Barton, Pat Mehaffy, Ned A. Stewart, Edward L. Westbrooke, Edward L. Wright, for defendant.
   Ed. F. McFaddin, Associate Justice.

This is an original proceeding, brought by a citizen and taxpayer against the Secretary of State, and challenging (a) the popular name, and (b) the ballot title of proposed Initiated Act No. I, which is to be submitted to the voters at the General Election in November 1958. Our jurisdiction of this proceeding is because of Amendment No. 7 to the Constitution, which reads (§ 16) in part: “The sufficiency of all statewide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction of all such clauses.” (Emphasis supplied). “Sufficiency” means more than a mere numerical count, because Section 18 of the Amendment says that if a petition be “insufficient”, it may be returned “for correction or amendment”.

I. The Popular Name. The complaint says inter alia-.

“That the popular name proposed by the sponsors which defendant has stated he will place on the November General Election Ballot, to-wit: ‘Act to Repeal the Full Crew Laws’, is so worded and so designated for the sole purpose of prejudice since the proposed Act would not in any way repeal a ‘full crew law’. Not one of the Acts proposed to be repealed is, or ever was, a ‘Full Crew Law’, nor does any of said acts concern or deal with a ‘full crew’.”

The proposed Act says it is to repeal three Legislative enactments, being: (a) Act 116 of 1907 (which may be found in §§ 73-720 et seq. Ark. Stats, and captioned, “An Act prescribing the minimum number of employees to be used in the operation of freight trains in this State and providing a penalty for the violation of this Act”); (b) Act 298 of 1909 (which may be found in §§ 73-723 et seq. Ark. Stats. and captioned, “An Act prescribing the minimum number of employees to be used in the operation of passenger trains in this State and providing penalty for the violation of this Act”); and (c) Act 67 of 1913 (which may be found in §§ 73-726 et seq. Ark. Stats. and captioned, “An Act for the better protection and safety of the public”). In several of our cases (K. C. So. RR. v. State, 116 Ark. 455, 174 S. W. 223; and St. L. S. F. Ry. Co. v. State, 215 Ark. 714, 223 S. W. 2d 186), we have referred to one or the other of these Acts as, “The Full Crew Law”, or the “Full Switching Crew Law”. In 44 Am. Jur. 619, ‘‘Railroads’’ § 405, similar statutes are referred to as “full crew acts” in this language:

“Statutes, commonly known as ‘full crew acts’, requiring crews of a certain number of employees on railroad locomotives or trains, have been generally sustained as a legitimate exercise of the police power.”

Anyone familiar with legal parlance could not possibly be misled by the popular name of this proposed Act, which is, “An Act to Repeal the Full Crew Laws”. Furthermore, one not familiar with legal parlance, but with ordinary English, could easily find a definition of the words “full crew law” in Webster’s Unabridged Dictionary, where the words “full crew law” are defined: “Railroads. A law requiring light trains to be manned on the same standard as heavy trains.” So, we conclude that the popular name here challenged is not open to any of the objections urged against it by the plaintiff.

III. The Ballot Title. The ballot title here challenged reads: “A proposed act to repeal acts prescribing minimum numbers of employees to be used in the operation of trains.” The plaintiff states, inter alia:

“That the ballot title as proposed by the sponsors and approved by the defendant is misleading, camouflaged by partisan coloring, inadequate to show the full meaning covered by said Act; fails to fairly allege the purpose of the Act, and is written in such a way that the material facts proposed therein are omitted to the extent that the electors will not and cannot determine the issues involved on which they are requested to east their vote. The ballot title is completely misleading and fails to state the true nature and effect of the Act. The ballot title fails to designate the only vital provisions of the initiated act, to-wit: the acts sought to be repealed which are set forth in Section 1 of the Act . . . The use of the words in the ballot title, ‘minimum number of employees’, is wholly meaningless.”

We have a number of cases which state the rules regarding the validity and sufficiency of the ballot title. Some of these cases are Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356, 44 S. W. 2d 331; Shepard v. McDonald, 189 Ark. 29, 70 S. W. 2d 566; Walton v. McDonald, 192 Ark. 1155, 97 S. W. 2d 81; Newton v. Hall, 196 Ark. 929, 120 S. W. 2d 364; Hogan v. Hall, 198 Ark. 681, 130 S. W. 2d 716; Sturdy v. Hall, 204 Ark. 785, 164 S. W. 2d 884; and Bradley v. Hall, 220 Ark. 925, 251 S. W. 2d 470. This general statement, from Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356, 44 S. W. 2d 331, has been restated in many cases:

“The ballot title should be complete enough to convey an intelligible idea, of the scope and import of the proposed law, and it ought to be free from any misleading tendency, whether of amplification, of omission, or a fallacy, and it must contain no partisan coloring.”

Each of the three Legislative enactments here sought to be repealed deals with the minimum number of employees required to be used in the operation of trains, and the purpose of the proposed Initiated Act here challenged is to repeal these Acts. The ballot title certainly and clearly states that purpose. We have studied all of the arguments advanced by the plaintiff and we conclude that the ballot title is valid as against each and all of the attacks here made on it.

Therefore, we deny the petition of the plaintiff.

         Here is the popular name, ballot title, and complete text of the proposed Act:
      “Proposed Initiated Act No. 1 (Popular Name)
      “ACT TO REPEAL THE FULL CREW LAWS.
      (Ballot Title)
      “A proposed act to repeal acts prescribing minimum numbers of employees to be used in the operation of trains.
      (Proposed Act)
      “WHEREAS, Arkansas is one of the relatively few states which by law prescribe minimum crews on certain trains operating in the state, thus resulting in higher operating expenses to the railroads in Arkansas than in neighboring states, all to the detriment of shippers and the traveling public; and
      “WHEREAS, railroads now have improved roadbeds and grades and have developed and now use equipment that can be operated with safety to the public and the employees with smaller crews than prescribed by law;
      “NOW, THEREFORE, BE IT ENACTED BY THE PEOPLE OF THE STATE OF ARKANSAS:
      “Section 1. That Act 116 of the General Assembly of the State of Arkansas, approved March 28, 1907, and Act 298 of the General Assembly of the State of Arkansas, approved May 81, 1909, and Act 67 of the General Assembly of the State of Arkansas, approved February 20, 1918, be and the same are hereby repealed.”

       One or the other of these three Acts has been before the Courts in several cases: Act 116 of 1907 was before the Courts in the case of C.R.I. & P. Ry. Co. v. State, 86 Ark. 412, 111 S. W. 456; and the holding of this Court was affirmed by the Supreme Court of the United States in C.R.I.&P. Ry. Co. v. Arkansas, 219 U. S. 453, 55 L. Ed. 219, __S. Ct._____ Act 67 of 1913 was held valid by this Court in St. L.I.M. & So. Ry. v. State, 114 Ark. 486, 170 S. W. 580; and the holding of this Court was affirmed by the Supreme Court of the United States in St. L.I.M. & So. Ry. v. Arkansas, 240 U. S. 518, 60 L. Ed. 776, 36 S. Ct. 443. Both the 1907 Act and the 1913 Act were held valid in the case of Mo. Pac. v. Norwood, 283 U. S. 249, 75 L. Ed. 1010, 51 S. Ct. 458. Other cases involving these Acts are K.C. So. Ry. Co. v. State, 116 Ark. 455, 174 S. W. 223; K.C. So. v. State, 194 Ark. 80, 106 S. W. 2d 163; Mo. Pac. RR. Co. v. Moore, 210 Ark. 643, 197 S. W. 2d 284; K.C. So. Ry. Co. v. State, 213 Ark. 906, 214 S. W. 2d 79; and St. L.S.F. Ry. Co. v. State, 215 Ark. 714, 223 S. W. 2d 186.


source: Caselaw Access Project

author: Minor W. Millwee, Associate Justice.

license: Public Domain

text:
    Moore v. Hall, Secy. of State.
    5-1737
    316 S. W. 2d 207
    Opinion delivered September 29, 1958.

      Tom Gentry, for plaintiff.

      Bruce Bennett, Atty. General, for defendant; Mehaffy, Smith & Williams, by B. S. Clark, of counsel for defendant.
   Minor W. Millwee, Associate Justice.

This is an original proceeding by Ruben Cleveland Moore, a citizen and taxpayer of this State, questioning the sufficiency of the popular name and ballot title of Proposed Constitutional Amendment No. 50 and to enjoin the Secretary of State from placing the proposed amendment on the ballot to be used in the general election on November 4, 1958.

The proposed popular name, ballot title and amendment read as follows:

(Popular Name)

“FREEDOM TO HIRE AMENDMENT”

(Ballot Title)

“AN AMENDMENT PROHIBITING PRACTICES THAT REQUIRE OR INDUCE AN EMPLOYER TO EMPLOY A GREATER NUMBER OF PERSONS THAN THE EMPLOYER DEEMS NECESSARY TO CARRY ON HIS BUSINESS.”

(Amendment)

“BE IT ORDAINED BT THE PEOPLE OF THE STATE OF ARKANSAS THAT THE FOLLOWING SHALL BE AN AMENDMENT TO THE CONSTITUTION:

SECTION 1. Practices known as “featherbedding” are contrary to the public policy of this State.

SECTION 2. No employer may be required to employ a greater number of persons than the employer deems necessary to carry on his business. Courts of chancery are empowered to enjoin any person, association or corporation attempting, directly or indirectly, to require, induce, coerce, or compel an employer to employ a greater number of persons than the employer deems necessary to carry on his business.

Petitioner alleges and earnestly contends that the popular name and ballot title of the proposed amendment are insufficient and invalid because they do not convey a fair, full and reasonably intelligent idea of the scope and import of the measure to be voted on, and fail to give the elector information concerning the choice he is called on to make between the retention of the existing law and the substitution of the proposed amendment. It is also argued that they contain partisan coloring and fail to give the elector a fair idea of the far reaching effects of the measure; and that the popular name especially is invalid because it is calculated and intended to give exactly the opposite impression of the contents of the proposed amendment from the true contents thereof and to induce the electorate into believing that the proposed amendment does something that it does not do.

We recently restated the rules to be applied in determining the sufficiency of ballot titles in Bradley v. Hall, Secretary of State, 220 Ark. 925, 251 S. W. 2d 470: ‘ ‘ On the one hand, it is not required that the ballot title contain a synopsis of the amendment or statute. Sturdy v. Hall, 204 Ark. 785, 164 S. W. 2d 884. It is sufficient for the title to be complete enough to convey an intelligible idea of the scope and import of the proposed law. Westbrook v. McDonald, 184 Ark. 740, 43 S, W. 2d 356, 44 S. W. 2d 331. We have recognized the impossibility of preparing a ballot title that would suit every one. Hogan v. Hall, 198 Ark. 681, 130 S. W. 2d 716. Yet, on the other hand, the ballot title must be free from ‘any misleading tendency, whether of amplification, or omission, or of fallacy, ’ and it must not be tinged with partisan coloring. Walton v. McDonald, 192 Ark. 1155, 97 S. W. 2d 81.

“It is evident that before determining the sufficiency of the present ballot title we must first ascertain what changes in the law would be brought about by the adoption of the proposed amendment. For the elector, in voting upon a constitutional amendment, is simply making a choice between retention of the existing law and the substitution of something new. It is the function of the ballot title to provide information concerning the choice that he is called upon to make. Hence the adequacy of the title is directly related to the degree to which it enlightens the voter with reference to the changes that he is given the opportunity of approving.”

Petitioner argues that the ballot title is fatally defective in that it would repeal or render unconstitutional the so-called “Full Crew Laws” (Ark. Stats., Secs. 73-720, 723 and 726), and numerous other acts and regulations designed to safeguard the public safety and health, without enlightening the voter with reference to the drastic changes that he is given the opportunity of approving. While there may be considerable merit in this contention, we would not strike the ballot title down on that basis alone. In this connection it should perhaps be noted that Section 1 of the amendment condemns all practices known as “featherbedding.” This term embraces numerous types of coercion of an employer by a labor union in which the employer is forced to pay for services not performed. “Featherbed rule” is defined in Webster’s New International Dictionary (Second Edition) as follows: “A union rule requiring an employer to pay unneeded workmen, or to pay for unnecessary or duplicating jobs, or setting limits to the amount of work that workmen may do in a day; for example, a rule requiring a union musician to be paid for standing by idle during the playing of records for broadcasting. ’ ’ Now the term “featherbedding” is not mentioned in the ballot title, which does not inform the voter that all such practices are condemned, but only those requiring more employees than are deemed necessary by the employer, who is made the sole judge of such necessity. While we may not be concerned with the wisdom of a measure that would require one man to do the work of three provided the employer deemed it necessary, this does not relieve the draftsman of the duty to provide an impartial summation of the measure in the ballot title without any misleading amplification, omission or partisan coloring.

When the above mentioned omissions are considered in connection with the proposed popular name, “Freedom to Hire”, which is to be construed along with the ballot title in determining its sufficiency, we hold the ballot title defective and that the prayer of the petitioner should be granted. When the popular name is considered in the light of the true purpose of the proposed amendment which is actually to restrict and curtail the number and hiring of employees, we think it has a manifest tendency to mislead the voter and contains partisan coloring. “Freedom” is an enchanting and bewitching word to every citizen of a democracy. There is some merit in the suggestion that the proposed popular name might leave the erroneous impression with the voter that by passage of the amendment some new freedom to hire rather than to refrain from hiring would be brought about. Similar catch' phrases and slogans which tend to mislead and to color the merit of a proposal on one side or the other have been rejected, or held fatally defective, by other courts. See Say v. Baker, 137 Colo. 155, 322 P. 2d 317; In re Petition of Idaho State Federation of Labor, 75 Idaho 367, 272 P. 2d 707.

The petition for an injunction is granted.


author: George Rose Smith, J.

text:
    Hoban v. Hall, Secy. of State.
    5-1736
    316 S. W. 2d 185
    Opinion delivered September 29, 1958.

      Tom Gentry, for plaintiffs.

      Bruce Bennett, Atty. General, and Boy Finch, Jr., Chief Asst. Atty. General, for defendant.
   George Rose Smith, J.

By this original action tbe petitioners seek to enjoin tbe Secretary of State from certifying as sufficient a ballot title for a proposed constitutional amendment, to be voted upon at tbe general election in November. In substance tbe petition asserts that tbe ballot title is so incomplete and so abbreviated that it fails to convey sufficient information to enable an elector to vote upon tbe measure with intelligence and understanding.

Tbe proposed amendment carries as its popular name “Tbe States Rights Amendment” and has tbe following paragraph as its ballot title:

“An Amendment Creating a States Rights Commission and Providing For Its Duties, Qualifications and Operation; Defining an Offense of Barratry and Providing Penalty thereof; Providing for tbe Suspension of State Funds to School Districts in Certain Cases, tbe Redistribution of Public School Funds in Certain Districts, tbe Possible Closing of Schools and Creation of Private Schools in Certain Districts, and tbe Recall of School Board Members, all of which to Be Determined by Special Elections of Qualified Voters; Regulating Voter, Candidate and Party Qualifications; Providing for Certain Penalties; Providing for a Severability Clause; and, Providing for a Repealing Clause.”

The amendment itself is- of such extreme length and touches upon so many different subjects that we shall merely summarize the provisions deemed pertinent to this discussion, with the full text being set out as an appendix to the opinion. Even a casual reading of the measure will disclose that it is the most far-reaching proposal ever offered to the state’s electorate.

Returning to the ballot title, one sees at once that its language is cast in generalities. The voter is told that the amendment is to create a States Rights Commission, but he is given no intimation of its powers or duties. He knows that the schools are to be affected “in certain eases” and “in certain districts,” but he is given no inkling of what those contingencies actually amount to. He realizes that he is to vote for or against changes in the election laws, but the ballot title supplies no clue as to the nature of those changes.

The single question is whether this ballot title meets the requirements of the constitution. The governing rules are well settled and perfectly familiar. The ballot title need not be a complete abstract of the act. Coleman v. Sherrill, 189 Ark. 843, 75 S. W. 2d 248. It must, however, provide the elector with information concerning the choice that he is called upon to make. Bradley v. Hall, 220 Ark. 925, 251 S. W. 2d 470. It was pointed out in our leading case, Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356, 44 S. W. 2d 331, that “the great body of electors, when called upon to vote for or against an act at the general election, will derive their information about it from the ballot title. This is the purpose of the title.”

Especially pertinent here is the decision in Walton v. McDonald, 192 Ark. 1155, 97 S. W. 2d 81, for it dealt with an error of omission. There the ballot title recited that the proposed measure was an act to provide for the assistance of the aged and the blind, but it failed to state that this assistance was to be financed by the levy of a sales tax and by the appropriation of a third of the taxes upon horse and dog racing. In holding the title to be misleading and therefore insufficient we said: “The title carries an appeal to all humane instincts. New would object to some provision being made for the support of the aged and blind; but to levy a general sales tax of two per cent, for that, or any other purpose, is a different question altogether, and would furnish the elector, however generous his impulses might be, serious ground for reflection if that information were imparted to him by the title of the question upon which he exercised his right of suffrage. ’ ’

Our inquiry, then, is whether this ballot title conceals matters which, if disclosed, would furnish the elector with “serious ground for reflection” before yielding to his impulse to vote in favor of an amendment ostensibly furthering the cause of states’ rights. After carefully studying the measure as a whole we are unanimously of the opinion that this ballot title fails to supply the voter with the information that the constitution expects him to have. For brevity we shall discuss only the provisions concerning the proposed commission and the election laws.

With respect to the commission the ballot title merely tells the elector that the measure will create a States Eights Commission and provide for its duties, qualifications, and operation. The cause of states’ rights, like that of the aged and the blind, is deservedly a popular one and undeniably appeals to the great body of the electorate. But are there provisions in the amendment which, if made known, would give the voter serious ground for reflection?

We have no doubt that there are. The Commission, created by Article I of the measure, consists of twelve members. Sections 5 and 6 of this article destroy the system of checks and balances that has characterized our government since its birth. Section 5 provides that no court shall be empowered to enjoin the Commission from performing the duties set out in the amendment. Those duties, however, are not clearly defined. By § 7 the Commission is invested with the duty and the power to “perform any and all things deemed necessary and proper” to protect the sovereignty of the several states and to resist the usurpation of the rights reserved to the states. Within the vague limits of this clause it is difficult to conceive of any power — legislative, executive, or judicial — that the Commission might not lay claim to. The ballot title, it may be observed, does not even mention the powers of the Commission, much less does it give a hint of their unlimited scope.

Having immunized the Commission from the action of the state courts, the amendment next frees it from the control of the state legislature. It has traditionally been the function of the legislative branch to exercise some measure of restraint over the other departments, through its power to enact laws and to control the public purse. But here that restraint is swept away. Since the Commission’s powers would be conferred by the constitution, they could not be affected by any laws that might be passed. And by § 6 the General Assembly is deprived of any financial supervision over the Commission. This section makes an annual appropriation of $250,000, which the Commission is at liberty to spend in any way it chooses. It may be noted that the General Assembly, in creating a State Sovereignty Commission that superficially resembles the proposed States Rights Commission without the latter’s unbridled powers, deemed an annual appropriation of $30,000 to be sufficient. Acts 83 and 170 of 1957. It will also be observed that the ballot title does not suggest to the voters that a quarter of a million dollars is to be appropriated every year, without any effective safeguard over its expenditure.

It is really not enough to say that the proposed Commission would have equal status with the other branches of the state government; the amendment contemplates that every other department shall be subservient to the Commission. Section 10 of Article I requires all elective and appointive officers and employees of the state and its subdivisions to cooperate with the Commission and to render such aid and assistance as may be requested by the Commission. By Article Y if any person, public official, or employee of the state fails to carry out “the clear mandates” of the amendment be is subject to a fine of not more than $5,000, to imprisonment for not more than a year, and to automatic forfeiture of Ms office. It is obvious that under the measure before us every public officer and employee in the state, without exception, would live in daily fear of offending the Commission.

Nor is the private citizen to be left untouched by the unlimited powers of the Commission. By §§ 8 and 9 of Article I the Commission is given broad authority to make investigations and to conduct public or secret hearings. It is evident that in the exercise of its inquisitorial power the Commission might interrogate any citizen in the state about his business affairs, his private life, his political beliefs, or any other subject that can be imagined. Although the measure purports to preserve certain fundamental rights of witnesses called before the Commission, these provisions are meaningless in view of the Commission’s immunity from the action of the judiciary. The blunt truth is that, however improper the Commission’s inquiries might be, the witness’s only choice would be to answer the questions or go to jail for contempt.

We have said enough, we think, to demonstrate beyond any question that, with respect to the proposed Commission, the ballot title fails to disclose essential facts that the voter is entitled to know before making up his mind. Much the same situation exists with reference to the changes in the election laws that would be brought about by the measure.

On the latter subject the ballot title simply tells the elector, in six words, that the amendment will regulate voter, candidate, and party qualifications. In fact, however, the proposal embodies such extensive innovations in the election laws that we cannot conscientiously suppose that the average voter would regard them as immaterial.

In addition to lengthening the period of residence required for qualified electors the measure introduces novel conditions to the right to vote. Section 5 of Article IY specifies that an elector must be “of good moral character,” that he understand the duties and obligations of citizenship under a republican form of government, and that he be able to read and write. It is evident that vague tests such as these leave much to the discretion of the election officers, who are in a position to disqualify any one they choose. Another change in the election laws is a requirement that an applicant for registration give his or her date of birth and exact age in years, months, and days. We have no doubt that this demand would be so distasteful to a substantial number of men and women that they would forego their right to vote rather than comply with this requirement. Yet the ballot title gives no information about these various amendments to the election law.

The wisdom of the measure does not, of course, concern the courts, for the people undoubtedly have the right to amend the constitution in any way they like. It is our duty, however, in a case of this kind, to approve the ballot title only if it represents an impartial summation of the measure and contains enough information to enable the voters to mark their ballots with a fair understanding of the issues presented. Tested by this standard, the ballot title now before us is clearly insufficient.

The petition for an injunction is accordingly granted.

APPENDIX

(Full Text of the Proposed Amendment)

BE IT ORDAINED BY THE PEOPLE OF THE STATE OF ARKANSAS THAT THE FOLLOWING BE ADOPTED AS AN AMENDMENT TO THE CONSTITUTION:

Article I — States Eights Commission.

Section 1. Communism, being an ideology with its purpose to destroy the freedom and liberty of all people throughout the world, its major weapon being the fomentation of strife and disharmony calculated to turn class against class and race against race, thereby upsetting time honored social patterns which have been attained in this country, not by prejudice but by a background of rich experience, all of which interferes with the exercise of rights reserved to the states; therefore, Communism is hereby declared to be against the public policy of the State of Arkansas.

Section 2. There is hereby created the States Eights Commission, which shall be composed of:

The Governor, the Attorney General, the Lieutenant Governor and Speaker of the House of Eepresentatives, each of whom shall be an ex-officio member.

Three citizens of Arkansas who shall be appointed by the Governor; one of whom shall reside East of White Eiver; one of whom shall reside South of the Arkansas Eiver; and one of whom shall reside West of the White Eiver and North of the Arkansas Eiver;

Two members of the State Senate who shall be appointed by the President of the Senate by and with the approval of at least eighteen (18) members of the Senate ;

Three members of the State House of Eepresentatives who shall be appointed by the Speaker of the House of Eepresentatives by and with the consent of at least fifty-one (51) members of the House of Eepresentatives; one of said appointees shall reside South of the Arkansas Eiver; one of them shall reside East of the White Eiver, and one of them shall reside North of the Arkansas Eiver and West of the White Eiver.

The ex-officio members of the Commission and members from the Senate and House of Eepresentatives shall serve during the terms of their respective offices and until their successors are elected and qualified. The members appointed by the Governor shall serve during the term of the Governor who appointed them and until their successors are appointed and qualified.

Section 3. The Governor shall be Chairman of the Commission, and the President of the Senate Vice-Chairman, with authority to act in the absence of the Chairman. Seven (7) members of the Commission shall constitute a quorum for the transaction of business.

Section 4. The Commission shall meet not less than one day each month and at such other times as the majority of the members shall deem it necessary. Should any member willfully fail and refuse to attend two consecutive meetings without reasonable cause, such member shall be removed from said Commission and from any other office he or she might hold under and by the authority of the State of Arkansas.

Section 5. No court in the State of Arkansas shall be empowered to enjoin the Commission from the performing of its duties as set out in this Amendment.

Section 6. The Commission may employ a secretary and such other legal, professional, expert, secretarial, clerical and other help deemed necessary and proper to carry out the objectives and purposes of this amendment; and it is hereby authorized and empowered to fix the compensation for such employees at any reasonable amount, and pay such other fees as from time to time may be required. Ex-officio members of the commission shall serve without remuneration in addition to that otherwise received by them from the State. Other members of the Commission shall receive $35.00 per day for each day spent on the business of the Commission. All members of the Commission shall be reimbursed for actual living and travel expenses incurred by them. In order to defray the expenses of the Commission, the Treasurer of the State shall, before the end of the first quarter of each fiscal year, set aside and credit to a fund hereby designated “The States Rights Commission Fund” the amount of $250,000, which fund shall be drawn on by the Commission to meet its expenses. The Treasurer shall deduct the amount of this fund from money received by him, that would otherwise be credited to the General Revenue Fund. Nothing herein shall be construed to prohibit the Commission from receiving and expending additional funds by way of private gifts or appropriations by the General Assembly. Full and complete accounting shall be kept and made by the Commission of all funds received and expended by it. The state auditors shall annually audit the expenditures of all funds received by the Commission from all sources.

Section 7. It shall be the duty of the Commission, and it shall have power in the name of the State of Arkansas or any political sub-division thereof, to perform any and all acts and things deemed necessary and proper to protect the sovereignty of the State of Arkansas and her sister states from encroachment thereon by the Government of the United States, or by any government of any nation, or federation of nations, or any branch or department or agency thereof, and to resist the usurpation of the right and the powers reserved to this State or her sister states by such governments, branches, departments or agencies.

Section 8. The Commission may make investigations and/or hold hearings (whether public or in executive session) in connection with any investigation made by it pursuant to the provisions of this Amendment. Witnesses at Commission hearings shall have the right to be accompanied by counsel of their own choosing, who shall have the right to advise witnesses of their rights, and to make brief objections to the relevancy of questions and to procedure. At least twenty-four (24) hours prior to his testifying, a witness shall be given a copy of that portion of the motion or resolution scheduling the hearing which copy shall state the subject of the hearing; and at the same time he shall be given a statement of the subject matter about which he is to be interrogated. The privileged character of communication between clergyman and parishioner, doctor and patient, lawyer or accountant and client, and husband and wife, shall be scrupulously observed. Every witness who testifies in a hearing shall have a right to make an oral statement and file a sworn statement which shall he made a part of the transcript of snch hearing, but such oral or written statement shall be limited to material relevant to the subject of the hearing.

Section 9. The Commission shall have power to issue subpoenas for witnesses to appear at hearings conducted by the Commission, and to issue subpoenas duces tecum directed to witnesses. Subpoenas shall be issued by the Chairman or Vice-Chairman of the Commission only, upon written notice to all members of the Commission, with a statement as to the identity of the witness or material and their relevancy to the investigation or hearing already authorized. Upon request of any member of the Commission, the question of whether a subpoena shall be issued or remain in force if already issued, shall be decided by a majority vote.

In case of contumacy or refusal to obey a subpoena issued by the Commission, any Circuit Court of the State of Arkansas within the jurisdiction of which the investigation or hearing is to be carried on, or within the jurisdiction of which said person guilty of contumacy or refusal to obey is found, or resides, or transacts business, shall, upon application of the Chairman or Vice-Chairman of the Commission, have jurisdiction to issue to such person an order requiring such person to appear before the Commission, there to produce evidence if so ordered, or there to give testimony touching the matter under investigation; and any failure to obey such order of the Court may be punished by said Court as contempt thereof.

The Chairman, Vice-Chairman or Secretary of the Commission is hereby authorized and empowered to administer oaths to witnesses; and any witness appearing and testifying before the Commission who shall willfully and corruptly testify falsely to any material fact shall be guilty of perjury and shall be subject to prosecution and punishment therefor as provided by law; and if such perjury be manifest, or if the witness shall refuse to testify, or to produce any books, records, papers or documents, lie shall be guilty of contempt of the Commission and shall be punished in cases of contempt of the Circuit Court of the State of Arkansas.

Any person sworn and examined as a witness before said Commission without procurement or contrivance on his part shall not be held to answer criminally or be subject to any penalty or forfeiture for any fact or act touching which he is required to testify; nor shall any statement made, or book, paper or document produced by any such witness be competent evidence in any criminal proceeding against such witness other than for perjury in delivering his evidence. Should any witness refuse to testify to any fact, or refuse to produce any book, document or paper touching which he is to be ex-examined, on the ground that he will thereby incriminate himself, or that it will tend to discredit or render infamous, the Commission shall consider such refusal as part of the evidence and shall inform the public of the refusal of such witness to so testify, and the facts and circumstances under which such refusal was made.

Section 10. All elective and appointive officers and employees of the State and the political sub-divisions thereof, including all public schools, and institutions of higher learning, shall co-operate with the Commission and render such aid and assistance as may be requested by them by the Commission.

Section 11. All persons, corporations, societies, organizations and other groups of persons who are found by a majority of the members of the States Bights Commission to be engaged in activities designed to further the cause of Communism shall be declared subversive and shall be required to file with said Commission a complete report of their activities within the State of Arkansas, including a list of names and addresses of their officers and members, a detailed certified financial report showing names and addresses of their contributors and expenditures, and such other information as the General Assembly shall require.

Article II — Barratry-

Section 1. Any lawyer who shall represent himself to be an attorney for any person, corporation, society, organization or other group of persons who are engaged in activities which foment racial unrest, without having been personally and specifically solicited and employed by said client or clients such attorney holds himself out to represent, or if such attorney or anyone acting in his behalf solicits said client or clients, said attorney shall be deemed guilty of barratry and in addition to the penalties provided by the General Assembly shall be disbarred and forever prohibited from the practice of law in the State of Arkansas.

Article III — School Bequirements

Section 1. No state funds shall be allocated to school districts in which the Negro and Caucasian races are mixed in classrooms, athletic or social activities in any school or schools within said district, except that such mixing of the Negro and Caucasian races shall have been sanctioned by a prior affirmative vote of the majority of the qualified electors in such district.

Section 2. Any school against which a decree, order or proclamation of any court or executive has been rendered, or shall be rendered, causing the mixing of Negro and Caucasian students, and any school or schools from which the students were transferred or were to be transferred in compliance with such decree, order or proclamation, shall be closed forthwith from and after the effective date of this Amendment.

Upon the closing of such school or schools an election shall be held at the earliest possible date in said school district to determine whether or not the qualified electors in said district are for or against mixing of the Negro and Caucasian races in their public schools. Should the majority of the qualified electors in said district favor mixing of the Negro and Caucasian races, the school or schools would be reopened upon an integrated basis. Should less than a majority of the qualified electors in said school district vote to mix the Negro and Caucasian races, then the affected school or schools, both Negro and Caucasian in said district shall be closed, and the physical plants and equipment of such shall be sold or leased for operation of private schools.

Section 3. The tax monies and state aid over and above that portion of said funds set aside for the retirement of bonded indebtedness of such schools shall be divided pro rata among the educable children of school age, regardless of color, who were former students of such affected schools, or who reside in the attendance area of such affected schools. Said money shall be used only for the education of said children, in schools meeting the minimum accreditation standards.

Section 4. Nothing in this amendment shall disturb the status of teacher tenure or teacher retirement benefits.

Section 5. Upon petition of not less than ten per cent (10%) of the qualified electors in any school district in the State of Arkansas, all elected school officials within said school district named in said petition, shall stand for re-election at a special election; the ticket shall be open for other electors to qualify as candidates. Such special election shall be held not later than one month after certification of the recall petition by the county clerk. In no event shall more than one such special election be held in any calendar year.

Section 6. All contracts for school personnel shall be entered into subject to ratification by the school board as it may be constituted following any special election under the provisions hereof.

Article IV — Voting Privileges

Candidate and Party Qualifications

Section 1. The right to vote in Arkansas shall be subject to the provisions of this amendment; provided, however, nothing herein shall be construed as repealing the Poll Tax requirements.

Section 2. Every citizen of this State and of the United States native born or naturalized, not less than twenty-one years of age, and possessing the following qualifications, shall be an elector, and shall be entitled to vote at any election in the State by the people.

Section 3. Each voter shall have been an actual bona fide resident of the State of Arkansas for two years, of the County one year, of the municipality in municipal elections four months, and of the precinct in which he offers to vote three months next preceding the election; provided, that removal from one precinct to another in the same county shall not operate to deprive any person of the right to vote in the precinct from which he has removed until three months after such removal; provided, further, that removal from one county to another shall not deprive any person of the right to vote in the county from which he has removed for district officers to be elected in a district which includes the county to which he has removed, or for state officers, whether the county be in the same district or not, until he shall have acquired the right to vote for such officers in the county to which he has removed.

Section 4. Each voter shall be, at the time he offers to vote legally enrolled as a registered voter on his own personal application, in accordance with the provisions of this Constitution, and the laws enacted thereunder.

Section 5. Each voter shall be of good moral character and shall understand the duties and obligations of citizenship under a republican form of government. He shall be able to read and write, and shall demonstrate his ability to do so when he applies for registration by making, under oath, administered by the registration officer or his deputy, written application therefor, in the English language, which application shall contain the essential facts necessary to show that he is entitled to register and vote, and shall be entirely written, dated and signed by him, except that he may date, fill out, and sign the blank application for registration hereinafter provided for, and, in either case, in the presence of the registration officer or Ms deputy, without assistance, or suggestion from any person or any memorandum whatever, other than the form of the application hereinafter set forth; provided, however, that if the applicant is unable to write his application by reason of physical disability, the same shall be written at his dictation by the registration officer or his deputy, upon oath of such disability.

The application for registration above provided for shall be a copy of the following form with the proper names, dates and numbers substituted for the blanks appearing therein, to-wit:

“I am a citizen of the United States and of the State of Arkansas. My name is Mr............................ Mrs. ...........................Miss............................ I was born in the state (or country) of..........................., County of...........................on the............ day of...........................in the year............................ I am now............ years, and ............ months and ............ days of age. I have resided in Arkansas since..........................., in the county since ..........................., and in Precinct No............................, in Ward No. ........................... of this county continuously since ............................ I am not disfranchised by any provision of the Constitution of this State. The name of the householder at my present address of...........................is............................ My occupation is ............................ My color is ............................ My sex is ............................ I am not now registered as a voter in any other ward or precinct of this State, except ............................ My last registration was in Ward ........................... Precinct .........-................, County............................ I am now affiliated with the...........................Party.

Signature

Sworn to and subscribed before me:

Registration Officer”

Section 6. Each voter must in all cases be able to establish that he is the identical person whom he represents himself to he when applying for registration, and when presenting himself at the polls for the purpose of voting in any election, or primary election. At any time of voting he must present his registration certificate for identification. In all instances of voting in any election or primary election the election officials must make proper notation on the elector’s registration certificate as to time and polling place of his appearance and as to the propriety of his party affiliation.

Section 7. The General Assembly shall enact laws to secure fairness in party primary elections, conventions, or other methods of naming party candidates. No person shall vote at any primary election, or in any convention, or other political assembly held for the purpose of nominating any candidate for public office, unless he is at the time a registered voter, and a certified member of the political party holding such election, convention, or assembly, and has such other and additional qualifications as may be prescribed by the party of which candidates for public office are to be nominated. All ballots in any election or primary election must designate the race — either Caucasion or Negro —■ of all candidates appearing thereon. And in all political conventions in this State the apportionment of representation shall be on the basis of population. No person shall be chosen as a delegate by any political party in this State to represent such party in any convention, local, state or national unless such delegate is a duly qualified elector under the provisions of this amendment. No provision of this amendment shall be construed as, nor shall any laws be passed by General Assembly, prohibiting or unreasonably restricting the formation of additional political parties, or binding any political party in this State to any national political party bearing the same name.

Section 8. Any person possessing the qualifications for voting prescribed by this amendment, who may be denied registration, shall have the right to apply for relief to the Circuit Court for the county in which he offers to register. Said court shall then try the cause, giving it preference over all other cases, before a jury of twelve, nine of whom must concur to render a verdict.

Any duly qualified voter of this State shall have the right to apply to the Circuit Court to have stricken off any names illegally placed or standing on the registration rolls of any county within the jurisdiction of said court; and such application shall be tried by preference before a jury of twelve, nine of whom must concur to render a verdict. Such application hereinabove provided for shall be without cost.

Section 9. The following persons shall not be permitted to register, vote or hold office or appointment of honor, trust, or profit in this State, to-wit: Those who have been convicted of any crime which may be punishable by imprisonment in the penitentiary, and not afterwards pardoned with express restoration of franchise; those actually confined in any public prison or county farm; all interdicted persons, and all persons notoriously insane or idiotic, whether interdicted or not.

Section 10. The General Assembly shall further implement this amendment by appropriate legislation. The qualifications herein provided for are in addition to other qualifications as are now required by law except those laws in conflict herewith.

Article Y — Penalties

Section 1. No person, public official or employe of the State of Arkansas or of any political subdivision thereof, shall have immunity from arrest, prosecution and trial for the violation of the provisions of this amendment or penal laws the General Assembly shall provide for the willful failure and refusal to carry out the clear mandates of this amendment, and in addition to the penalties, shall automatically forfeit his or her office.

Section 2. Any person, public official, or employee of the State of Arkansas or of any political subdivision thereof, who shall wilfully fail and refuse to carry out the clear mandates of this amendment shall be deemed guilty of a misdemeanor and shall be punished by a fine of not more than $5,000.00 or imprisonment for not more than twelve (12) months, or by both such fine and imprisonment.

Article VI — Severability

Section 1. If any section, paragraph, sentence or clause of this amendment shall be held to be unconstitutional or invalid, the same shall not affect any other part, portion or provision of this amendment, but such other part shall remain in full force and effect.

Article VII — Repealing Provision.

Section 1. All parts of the Constitution of the State of Arkansas in conflict with this amendment be, and the same are, hereby repealed.


author: Paul Ward, Associate Justice.

text:
    State ex rel. Ark. Publicity & Parks Comm. v. Butt, Chancellor.
    5-1606
    316 S. W. 2d 204
    Opinion delivered September 29, 1958.

      Bruce Bennett, Atty. General; Bussell J. Wools, Asst. Atty. General, for petitioner.

      Hugh M. Bland and Shaw, Jones <& Shaw, for respondent.
   Paul Ward, Associate Justice.

Petitioner here seeks to enjoin the Chancery Court of Washington County from proceeding in a cause there pending on the ground that it is an action against a State Commission. Petitioner’s contention is that in such action only the Pulaski County Chancery Court has jurisdiction under Ark. Stats. §§ 27-603 and 34-201. The respondent asserts that the Chancery Court of Washington County has jurisdiction under Ark. Stats. § 27-601.

Since one phase of this matter was before us previously (see State Ex Rel. Ark. Publicity & Parks Comm. v. Woodward, 228 Ark. 856, 310 S. W. 2d 803) we by-pass consideration of the procedural method here pursued.

On February 28, 1957 Neil W. Woodward filed a petition in the Chancery Court of Washington County against the Petitioner wherein he claimed to be the owner of the S% of SE%, Sec. 23, Twp. 13 N., Range 31 W. in Washington County, deraigning his title from the Federal Government. Woodward further alleged that said lands were wild and unimproved, and that he and his predecessors had paid all the taxes since 1926, and; That petitioner unlawfully and wrongfully took possession of a part of said land for park purposes under claim of title through a deed from the State based on a void tax sale for the 1930 taxes. The complaint further states that volume 287 in the clerk’s office showing the forfeiture of said lands in 1930, at page 501, bears the marginal notation “Cancelled Chancery Court Decree April 20, 1940, D. L. Moore, Clerk”. The complaint contains a copy of the Decree in a suit brought by the State to quiet title to the lands in question in Washington County, which shows that on April 20, 1940 the Chancery Court dismissed the State’s claim to the land here claimed by Woodward, and it is stated that no appeal had been taken by the State. Also attached to the complaint is “Exhibit 1” which is captioned “State Land Office, James H. Jones Commissioner, Entry Statement”. It is to the effect that the State has no claim to the questioned land, and that it has no record of a conveyance of any part of said land to the Petitioner. The complainant further alleges that the Petitioner is claiming some right, title or interest in said lands by reason of a dedication deed from the Commissioner of State Lands dated January 22, 1935, and recorded in the clerks office of Washington County; and that said deed and the other instruments above mentioned constitute a cloud upon the title to his land.

The prayer was that said clouds be removed from complainant’s title and that title to said property be vested in him as against the Petitioner herein, and, further that petitioner be commanded “to remove any improvements placed upon said property . . .”

To the above complaint Petitioner entered a demurrer on the ground that the “court has no jurisdiction of the person of the defendant or the subject matter of this action.” The Respondent overruled the demurrer, and Petitioner here asks us to prohibit Respondent from proceeding further in this cause, and asks that the action there pending be ordered transferred to the proper tribunal in Pulaski County.

It is our conclusion that the Respondent was correct in overruling the demurrer. Ark. Stats. § 34-201 reads, in relevant part, as follows: “. . . all actions against such board or commissioner or state officer, for, or on account of any. official act done, or omitted to be done, shall be brought and prosecuted in the county where the defendant resides . . .” § 27-601 in relevant part, states that actions for the recovery of real property, or of an estate or interest therein must be brought in the county in which the subject of the action (land) is situated.

The present action was, we think, one affecting title to land, as set out in the last mentioned statute, and was therefore properly brought in Washington County. Since a demurrer admits all allegations in the complaint, the present action amounted to an attempt by Woodward to have certain void deeds and entries removed as clouds upon his title. In other words it was an action to quiet title. We have held many times that such an action is properly brought in the county where the land is situated. See Fidelity Mortgage Company v. Evans, 168 Ark. 459, 270 S. W. 624. An action to remove a fraudulent deed as a cloud on title to land comes within the same statute. See McLaughlin v. McCrory, 55 Ark. 442, 18 S. W. 762.

The present action was not such an action against the State or Commission as falls within the purview of § 34-201, since it sought to impose no obligation upon the State. In Federal Compress & Warehouse Co. v. Call, 221 Ark. 537 (at page 541), 254 S. W. 2d 19, this court in dealing with this question stated: “No money judgment is sought against the state — only the enjoining of allegedly void rulings,” etc., and held the action not to be against the State. We said in Hickenbothan v. McCain, Comm’r of Labor, 207 Ark. 485 (at page 490), 181 S. W. 2d 226, “But if the relief prayed is granted no obligation is imposed upon the state. It is, therefore, not a suit against the state.” See also Wilson v. Parkinson, 157 Ark. 69, 247 S. W. 774. In the case under consideration, taking the allegations of the complaint to be true, Woodward sought to impose no obligation upon the State.

The suit brought by Woodward is in effect an action to clear certain clouds from the title to his land in Washington County. Prom a practical standpoint it appears reasonable, if not compelling, that any court proceedings or decrees affecting his title should appear on the records of that county. No doubt the legislature recognized this fact in enacting § 27-601. This court so found in Jones, McDowell & Co. v. Fletcher, 42 Ark. 422 at page 439 when it said: “It is very clear that the Legislature intended, in the adoption of section 4532 Gantt’s Digest (Ark. Stats. § 27-601) as a part of our code procedure, to make all actions, whether at law or in equity, where the judgment or decree is to operate directly upon the estate or title, local, and to restrict the remedy to the proper tribunal of the county where the subject of the action, or some part of it, is situated”.

For the reasons heretofore set out the writ is denied.

We have not overlooked that Woodward asked for a mandatory injunction requiring Petitioner to remove any improvements placed upon the land. We think this in no way affects the main issue considered above, because there is no proof that any such improvements have been placed on the land. This feature of the case may or may not arise when and if the cause is tried on its merits.

Denied.


author: Sam Robinson, Associate Justice.

text:
    Swindle v. Thornton.
    5-1592
    316 S. W. 2d 202
    Opinion delivered September 29, 1958.

      Witt S Witt, Nabors Shaw and Donald Poe, for appellant.

      W. G. Spencer and Donn G. Allison, for appellee.
   Sam Robinson, Associate Justice.

The appellants, Sam Swindle and Elizabeth Swindle, brother and sister, committed an assault and battery upon the appellee, M. O. Thornton, by beating him in the face with a rock and cutting Mm about the face and on the arm with a pocketknife. Thornton filed suit against the Swindles for damages due to the injuries inflicted upon him. The trial resulted in a judgment in favor of Thornton in the sum of $1,500, and the Swindles have appealed.

Mr. Thornton is a resident engineer for the State Highway Department. It was his duty in connection with his work to see that a highway which was being constructed by the McG-eorge Construction Company in Montgomery County and which passed in front of the Swindle home was built according to plans and specifications. Incidentally, Mr. Thornton had nothing to do with preparing the plans; it was merely his duty to see that the plans were followed.

The new construction of the highway lowered it to some extent in front of the Swindle home, and Elizabeth Swindle could not see the occupants of automobiles that traveled in front of her house, as she had in the past; she could see only the tops of the automobiles. In lowering the grade of the road it was desirable that roads leading onto the Swindle property be worked and graded for the convenience of those using the property. In this connection Mr. Thornton obtained an easement signed by Sam Swindle authorizing the work to be done on the Swindle property. A portion of the driveway that needed to be worked extended beyond the highway right of way. However, it developed that Sam Swindle did not actually own the property involved. It is owned by his sister, Elizabeth Swindle, and it is contended that Elizabeth Swindle did not authorize Sam Swindle to sign the easement, although the work to he done in connection with the driveway was for the benefit of the property owner.

Early the next morning after the easement had been signed, Sam Swindle made a trip to see a lawyer, and the conclusion was reached that the easement was not valid. From the evidence it can be determined that the Swindles were extremely angry about the grade of the road having been changed, and it appears that they attributed this change to Mr. Thornton. Elizabeth Swindle made threats that she was going to kill Mr. Thornton. Both of the Swindles were in a very ugly mood when Mr. Thornton, in going about his work, drove up in front of the Swindle house. He stopped his car in the public road and got out. At that time he did not know that the Swindles were angry. He thought that the new situation in connection with the road was entirely satisfactory with everybody. According to the evidence, which the jury had a right to believe, both Elizabeth and Sam Swindle immediately made an attack on Mr. Thornton when he got out of his automobile, Elizabeth Swindle beating him in the face with a rock and Sam Swindle stabbing and slashing him with a knife. The Swindles contended at the trial that without any provocation Mr. Thornton had made an attack upon Sam Swindle while Sam Swindle was standing on private property belonging to his sister. Obviously the jury did not believe this version of the affair.

First, it is argued that instruction No. 4, given at the request of Thornton, is a binding instruction that ignores certain defenses set forth by the Swindles and is therefore fatally defective. The instruction is as follows: “You are instructed that every person is the sole custodian of his person, and no one has the right to touch it unlicensed, and that any unlawful touching of the person of another constitutes an assault and battery. Therefore, if you believe from the preponderance of the evidence in this case that the defendants, Saul Swindle, Sam Swindle and Elizabeth Swindle, or any of them, did make an assault and battery upon the person of M. O. Thornton by striking, beating, bruising, cutting, or otherwise injuring the person of the said M. O. Thornton with their fists, rocks, a knife, or any other instruments or things, then your verdict should be for the plaintiff as against those persons that you find from a preponderance of the evidence actually made an assault and battery on M. O. Thornton, for such an amount as you find he is entitled to.” (There was no judgment against another brother, Saul Swindle.)

By instruction No. 2 the court told the jury that ‘ ‘ an assault and battery is the unlawful striking or beating the person of another”.

At the request of the Swindles the court told the jury: “The court instructs the jury that every person has a right to complete and perfect immunity from hostile assaults that threaten danger to his or her person — a right to live in society without being unnecessarily or wrongfully put in fear of personal harm. And an assault is an attempt with unlawful force to inflict bodily injury upon another, accompanied with the apparent present ability to give effect to the attempt if not prevented.” And, further:

“If a person wilfully trespasses upon the premises of another, and while so trespassing assaults the owner thereof, and the owner, while defending his or her person from such assault, inflicts an injury upon the party thus making such assault, the party thus injured cannot recover damages for the injury so received.”

It is appellants’ contention that instruction No. 4 given at the request of appellee ignores the defense that Thornton, first, assaulted the Swindles, and, second, that Thornton trespassed upon the Swindles’ property. But before Thornton could recover under this instruction the jury had to find that the Swindles made an unlawful attack upon him and that their action in cutting and beating Thornton constituted an assault and battery. The jury was fully informed as to what constituted an assault and battery, and since under instruction No. 4 the jury first had to find that an assault and battery was committed upon Thornton before be could recover, no element of tbe defense was left out of tbe instruction.

Appellants contend that tbe trial court erred in permitting Thornton to testify that as part of tbe damages be sustained be bad used fifty days of accumulated sick leave valued at $18.50 per day, which was bis regular salary. Appellee was entitled to show all tbe loss be bad sustained, and even though be was compensated to some extent through workmen’s compensation, this could be of no benefit to tbe appellants. Ark. Stat. § 81-1340.

Appellants also complain that part of instruction No. 6 given at tbe request of appellee authorizes tbe jury to find for tbe appellee for loss of earnings in tbe future, if any. It is contended that .there is no evidence to sustain an instruction on future earnings. Thornton received severe injuries. In fact, be nearly bled to death. One gash on bis arm was 4% or 5 inches long, and cut tbe large vein and tbe full muscle. Appellee testified that be has not been free of a headache since the attack upon him; that be is nervous and can’t do a day’s work like be could before; that he cannot sleep and has to take treatment for tbe nervous condition and lack of rest; and Dr. G. T. Stewart testified that Thornton is still under bis care. Tbe evidence justifies tbe instruction.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Bowling, James & Bell v. State.
    5-1594
    316 S. W. 2d 343
    Opinion delivered October 6, 1958.

      Bryan J. McCallen and Claude F. Cooper, for appellant.

      Bruce Bennett, Atty. General and Bill J. Davis, Asst. Atty. General, for appellee.
   Carleton Harris, Chief Justice.

The question in this case is whether, under the facts hereinafter enumerated, the State of Arkansas was entitled to forfeiture on the bond of James A. “Dock” Bowling, said bond having been executed by appellants, Russell James and Earl Bell, along with Bowling.

Appellant Bowling was arrested in the Western District of Clay County on a charge of possessing stolen goods, and was released upon making bail in the sum of $5,000, said bond being executed by appellants J ames and Bell. Upon his release, Bowling left Clay County, and went to his home in Missouri. The trial was set for January 21, 1957, but was continued and reset for April 22, 1957, due to the illness of one of Bowling’s attorneys. Prior to the new date for trial, Bowling was arrested in Missouri on a fugitive warrant from Arkansas (relating to a different charge from the one for which the bond had been executed), and refused to waive extradition. Subsequently, he was charged with Burglary and Larceny in Dunklin County, Missouri, and with Receiving Stolen Property in Pemiscot County, Missouri. On April 22nd, when Bowling’s case was set for trial in Clay County, said appellant was in the Dunklin County jail at Kennett, Missouri, having failed to make a $2,000 bond. Forfeiture on the bond in the Clay County case was declared by the court, but the cause was set for hearing on June 10, 1957, for appellants to show cause why said bond should not be forfeited. Following a continuance until July 1st, the court ordered, after a hearing, that the forfeiture should not be set aside, and entered judgment for the State of Arkansas against appellants, both jointly and severally, in the sum of $5,000. From snch judgment comes this appeal.

For reversal of the court’s judgment, appellants first assert that the bond should not have been forfeited because “it was no fault of the principal in said bond, or his bondsmen, that the principal did not appear for trial on the 22nd day of April, 1958,” and secondly, that the bondsmen were excused for the appearance of the principal of this bond by reason of an act of law.

The bondsmen contend that they did everything within their power to have Bowling present in Clay County on the day of the trial. The record reflects that the sheriff of Dunklin County was contacted by James, in an effort to persuade the sheriff to permit Bowling to return to Clay County for trial. Tester Robinson, a resident of Frisbee, Missouri, at the request of James, talked with the sheriff, and the judge of Dunklin County, in an attempt to get Bowling released, but was also unsuccessful. A like request was made of the sheriff and prosecuting attorney of Pemiscot County by Clyde Maloney of Pascóla, Missouri, and J. B. Light of Haiti, Missouri. According to appellant James, Bowling was willing to return to Clay County, stand trial, and return to Dunklin County for trial if acquitted in Arkansas; if convicted in Arkansas, Bowling had agreed to voluntarily go back for trial after serving his sentence.

Admittedly, a bail bond was fixed, as prescribed by law, by the Missouri authorities, prior to the forfeiture taken in the Circuit Court of Clay County. Appellants state that this bond was not made because Sheriff Scott of Dunklin County stated that if Bowling made the bond, another charge would be filed against him. According to witness Robinson, “he said he was going to keep him. Said, ‘Yes, if you want to make a bond to release him, but there will be others.’ ” That he “* * * would file on him as fast as he would get loose, be $6,000 in bonds to get him over here.”

It is argued that the Missouri officials held Bowling in jail without just cause, and that his rights under the Missouri constitution, relative to hail, were violated. Suffice it to say that we have no jurisdiction of the Missouri counties, nor any control over the action of their authorities; however, we certainly see nothing unreasonable in the sheriff’s refusal to permit Bowling to leave without first making proper bond to assure his return to Missouri. No application for a writ of habeas corpus was made by appellants’ counsel, nor was any bond offered. Likewise, Bowling refused to waive extradition on the second warrant from Arkansas. Appellants’ position is unsound principally, however, for the reason that the bondsmen made no attempt to keep the principal within the jurisdiction of the state of Arkansas. Upon the making of the bond, Bowling, without any protest from his bondsmen, as far as the record shows, forthwith went to Missouri. In becoming sureties on the bond, James and Bell, of course, assumed the risk of Bowling’s failure to return to Clay County for trial. A bondsman may well consider, when executing bail, many factors that might prevent the return of the principal, vis., the general character and reputation of the defendant, the seriousness of the charge against him, the probabilities or improbabilities of successful prosecution, and the possibility of the principal becoming involved in further trouble, as happened in this instance.

As authority for their contention that the bond should not have been forfeited, appellants cite the case of Belding v. State, 25 Ark. 315. That case is readily distinguishable from the instant cause. In the Belding case, the federal government arrested the principal within the state of Arkansas; furthermore, there was only a provisional civil state government at the time, which was subject to military authority. In the litigation before us, appellant voluntarily left this state, thus depriving Arkansas of its jurisdiction over him.

While there are a few cases to the contrary, the general rule is that in order for a surety to be discharged on his bail bond for the reason of an act of law, the act of law must be operative and obligatory in the state where the bond is given. As stated in American Jurisprudence, Volume 6 (Revised), page 133, paragraph 174:

“Generally, sureties on a bail bond or recognizance are excused, and a judgment of forfeiture will be vacated, where fulfillment of the requirements of the bond is prevented by an act of law. An example of an act of law discharging the sureties on a bail bond or recognizance is the abolition of the court in which the accused is obligated to appear. However, an act of law which will relieve the sureties as a matter of right must be an act of law operative in the state where the obligation was assumed, and obligatory in its effect upon her authorities. ’ ’

In the Re-statement of the Law of Security, page 559, paragraph 207, we find:

“Where at the time for the principal’s appearance he is in custody in another state, the surety on his bail bond is not discharged unless the principal has been delivered to the other state by action of the first state, or removed there by federal authority.”

The following comment is made:

‘ ‘ The surety, having custody of the principal, should prevent his leaving the jurisdiction. If the principal nevertheless leaves, and is arrested in another state, the surety remains liable on his bond. If, however, the principal has been surrendered to another state, either as the result of extradition or by the voluntary action of the officers of the jurisdiction in which the bond has been executed or has been removed by federal authority to another jurisdiction, the surety has a defense because the non-appearance of the defendant is due to the state itself or to another authority which the surety cannot oppose.”

The same view was taken by this Court in Adler v. State, 35 Ark. 517, wherein Chief Justice English, speaking for the Court, said:

“Imprisonment of the principal for crime, therefore, will generally release the bail, the state having taken him out of their possession; and so will the surrendering of him to the authorities of ahother state as a fugitive from justice. But if they permit him to go into another jurisdiction, and there he is arrested and imprisoned, they will not be released; for they should have kept him within his and their own state. ’ ’

The Chief Justice then commented on the Belding case, (heretofore mentioned as being largely relied upon by appellants), as follows:

"Belding v. The State, 25 Ark. 315, the only case cited by counsel for appellants to sustain the defense set up in the third paragraph of the answer, is not in point. There the principal in the recognizance was seized by the military authorities of the United States of this department, and imprisoned in Little Bock, and then sent to Vicksburg and imprisoned there, and so prevented, without the fault of the surety, from appearing in the circuit court of Hot Spring county, at the September term, 1867, to answer an indictment, as required by the condition of the recognizance; and this was held to be a valid defense for the surety. There the principal was not prevented from appearing by the act of the obligee in the recognizance (the state), but by a force claiming to act under authority of the federal government, which neither the state nor the surety could control.”

It appearing that appellants, under the law, are not entitled to the relief sought, the judgment of the Circuit Court is, in all things, affirmed.

       Also, a holdover warrant had been placed with Dunklin County by the sheriff of Pemiscot County relating to the Receiving Stolen Property charge.

       Sheriff Scott stated he told those who inquired about the bond, that though it were made, he would still have to turn Bowling over to the Pemiscot County sheriff, because of the holdover warrant. Bond in the Pemiscot County case had been set at $4,000.


author: J. Seaborn Holt, Associate Justice.

text:
    Cloman v. Cloman.
    5-1652
    316 S. W. 2d 817
    Opinion delivered October 6, 1958.
    [Rehearing denied November 10, 1958]

      T. O. Abbott, for appellant.

      T. P. Oliver, J. S. Thomas and W. A. Speer, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellant, Carrie Cloman, and appellee, Marion Cloman, negroes, were married in November 1922 in El Dorado, Union County, Arkansas. They separated, in May 1953 and appellant brought the present suit June 27, 1957, alleging in her complaint that appellee “without just cause and without any explanation to the plaintiff left their home at 130 Rock Island Avenue in El Dorado, Arkansas, where they had been living as husband and wife for years and moved a few blocks away from their said home and began living with a younger woman, namely, Rosie Lee Hardy, with whom the defendant soon thereafter went through a marriage ceremony on June 9, 1953, at Magnolia, Arkansas. This purported marriage between the defendant and the said Rosie Lee Hardy took place after the defendant had fraudulently, and upon false and fraudulent affidavits and perjured testimony, obtained a decree for divorce (in Columbia County). In order to obtain said fraudulent and void decree for divorce the defendant made affidavit for warning order in which he swore that the plaintiff was a non-resident of the State of Arkansas, when at the time said affidavit was made said defendant well knew that the plaintiff' was still residing in their home in El Dorado, Union County, Arkansas, where the plaintiff and the defendant had lived as husband and wife for many years. Said defendant further falsely swore and the witnesses on his behalf falsely swore that this plaintiff was a non-resident of Arkansas, and that the defendant was a resident of Columbia County, Arkansas, when in truth and fact defendant was at the time residing in El Dorado, Arkansas within a few blocks from the home where he had lived with the plaintiff and where the plaintiff was still residing . . . Plaintiff states that she is in very poor health and is unable to work and earn a living and is under care of doctors, and that the defendant is a veteran of World War I and is also a retired railroad worker and has ample means with which to support and maintain this plaintiff as his legal wife. Plaintiff states that defendant has had a stroke, and is in a wheel chair. That plaintiff is willing for defendant to return to their home, where defendant can be cared for during his lifetime.” She prayed for suit money, including attorney’s fees, and for reasonable maintenance and support.

Appellee answered with a general denial and pleaded laches and estoppel. Trial resulted in a decree dismissing appellant’s complaint for want of equity. The decree in part recites: “. . . this court does not have jurisdiction to annul a decree rendered at a former term of court of the Columbia Chancery Court, First Division; that this court further finds that if this court had jurisdiction the plaintiff is estopped and the plaintiff’s petition to annul and for maintenance, attorney’s fee, and costs should be denied.” This appeal followed.

It appears undisputed in this case that at the time appellee secured a decree of divorce from appellant in Columbia County that neither of the parties was a resident of Columbia County or had either of them ever lived or resided in that county. In fact, both had lived, all their lives in Union County. We hold, therefore, that the Columbia County divorce decree was absolutely void for lack of jurisdiction of the Columbia Chancery Court. It is well settled that the decree of a court that had no jurisdiction of the subject matter or of the parties has no legal force and effect. It is a nullity. See Cooper v. Cooper, 225 Ark. 626, 284 S. W. 2d 617. Under the topic Divorce and Alimony, Ark. Stats. 1947, Sec. 34-1204, Venue-Service of process, provides: “The proceedings shall be in the county where the complainant resides, and the process may be directed in the first instance to any county in the State, where the defendant may then reside.” So at the time the present suit was filed the parties here had never been legally divorced and were still husband and wife. Our law is so well established that it is the duty of the husband to furnish maintenance and support for the wife that citation of authorities seems unnecessary. We think that the preponderance of the testimony shows that immediately after appellant learned of the Columbia County divorce decree she immediately employed an attorney and filed the present suit in Union County.

We do not agree that laches is a defense to the present suit. “Generally, laches does not bar such a suit (for support and maintenance) the right of suit being continuous, although condonation may have such effect. ’ ’ Vol. 27 Am. Jur., Sec. 407, p. 15. We find no sufficient evidence to support condonation here. We think the preponderance of the evidence in this record fails to support the alleged separation agreement and we find nothing that would prevent appellant, who had lived with appellee from their marriage in 1922 until he left her in 1953 — without just cause, from claiming her legal rights as his lawful wife.

The evidence shows that appellant was 53 years old, in poor health, without funds and unable to support herself. Appellee is a disabled war veteran, and receives monthly a check from the federal government in the amount of $314 in addition to his social security and some other income. Accordingly, the decree is reversed with directions to allow appellant reasonable support and maintenance as appellee’s wife, together with all her costs, and a reasonable amount for her attorney’s fee.

Chief Justice Harris and Justices McFaddin and Millwee dissent.


text:
    Lindsey v. State.
    4911
    316 S. W. 2d 349
    Opinion delivered October 6, 1958.

      'William E. Wiggins and John B. Hainen, Texarkana, Texas, for appellant.

      Bruce Bennett-, Atty. General, and Bill J. Davis, Asst. Atty. General, for appellee.
   Ed. F. McFaddin, Associate Justice.

From a conviction for grand larceny (§ 41-3907 Ark. Stats. as amended by Act 243 of 1949) appellant brings this appeal. The motion for new trial contains eight assignments, which we group and discuss in. suitable topic headings. ■

I. Sufficiency Of The ■Evidence. The specific charge was, that appellant and Cordell Powell had stolen a horse, the property of Mr. John Hawkins. Reciting the facts in the light most favorable to the verdict, as is our rule on appeal, there was evidence that Hawkins’ employee, Dave Moon, put the horse in question in a pasture in Little, River County, Arkansas, on the night of September 8, 1957; that the fair market value of the horse was $100.00; that the horse was not in the pasture the next morning; and.that Moon tracked the horse to the Lewis Ferry, which operates over Red River between Little River County, Arkansas,' and Bowie County, Texas. The ferry operator, Mr, Polk, testified that appellant and “another man” crossed the ferry the night of September 8th from Little River County, Arkansas to Bowie County, Texas; that appellant was in an automobile and the other, man was riding a horse; and that the description of the horse owned by Hawkins matched the description of the horse that appellant and the other man took across the ferry.

It was shown that the horse in question was taken to Bowie County, Texas,. and placed in a pasture, and appellant claimed ownership of the horse until it was later identified and recovered by Dave Moon for Hawkins, Appellant claimed that Cordell Powell took the horse and that appellant was only accessory after the fact; but appellant did not deny that he claimed ownership of the horse by some sort of purchase from someone. It was the prerogative of the jury to pass on the fact question; and the evidence is sufficient to support the verdict of guilty as rendered by the jury because there was sufficient evidence to make a fact question as to whether the appellant was an accessory before the fact.

II. Venue. Appellant claims that no crime was committed in Little River County, Arkansas, because the appellant laid no claim of ownership to the horse until it had been carried to Bowie County, Texas. There is no merit to this argument. The testimony of the ferry operator, that appellant accompanied the “other man” and the horse across the ferry from Little River County, Arkansas to Bowie County, Texas, when coupled with appellant’s subsequent claim of ownership of the horse, made a jury question as to appellant’s participation in taking the horse from Little River County, Arkansas.

III. Failure To Give The Written Instructions To The Jury. At the proper time the Court instructed the jury, and it is conceded by appellant that the instructions were typewritten on four pages of legal size paper. When the jury retired to consider its verdict, appellant’s counsel moved the Court to allow the jury to take the written instructions into the jury room. The Court refused this motion since the jury had made no such request. Appellant assigns as error the refusal of the Court to allow the jury to take the typewritten instructions into the jury room. There is no merit to this assignment. We have repeatedly held that it is within the sound discretion of the Trial Court to grant or refuse defendant’s request that the jury take the written instructions into the jury room. Hurley v. State, 29 Ark. 17; Benton v. State, 30 Ark. 328; Culbreath v. State, 96 Ark. 177, 131 S. W. 676; and Rutledge v. State, 222 Ark. 504, 262 S. W. 2d 650. No abuse of discretion is shown in the case at bar.

IV. Newly Discovered Evidence. In one assignment in the motion for new trial, appellant claims that he had discovered some new evidence. The assignment reads as follows:

“Newly Discovered Evidence. It having come to the attention of the Attorneys for the Defendant that testimony heretofore non-discovered would be available to the Defendant to the effect that the horse being the subject matter of the alleged larceny did not belong to John Hawkins, Sr. as such witness testified for the prosecution and that consequently the agency of Dave Moon, witness for the prosecution, would also fail, leave of the Court to hereafter attach affidavits of credible witnesses to sustain such position being requested as on the date of the filing of this Motion the Attorneys have not yet procured such affidavits but anticipate such procurement shortly. ’ ’

All we know about this assignment is what is copied above: the record does not contain any affidavits as mentioned, and no diligence is shown; so this assignment fails for lack of support.

Affirmed.

       Some cases so holding are: Allgood v. State, 206 Ark. 699, 177 S. W. 2d 928; and Eddington v. State, 225 Ark. 929, 286 S. W. 2d 473.

       Act No. 128 of 1957 is not applicable here, because the State did not join in the request made by defendant.


text:
    Reaves and Neal v. State.
    4916
    316 S. W. 2d 824
    Opinion delivered October 6, 1958.
    [Behearing denied November 10, 1958]

      Maddox, Greer, Maddox é Collier, for appellant Neal; Sam, Anderson and Iiolt, Park.& Holt,.for appellant Reaves. . ■ =■ =

      Bruce Bennett,-Atty. • General and Bill.J. Davis, Asst. Atty. General, .for appellee.
   Minor W. Millwee, Associate Justice.

■ The appellants, James George Reaves and Lonnie Neal, were jointly charged, tried and' convicted of burglary and grand larceny by breaking into the Bén Powell' Chevrolet Company at Trumann, Arkansas, and stealing certain property valued at more than $1,000.00. The amended information also charged prior felony convictions of both appellants. In their verdict the jury left the punishment to the trial court. Reaves was sentenced to ten years for burglary and ten years for grand larceny, the sentences to run consecutively. Neal was given similar sentences of . ten years for burglary and five years for grand larceny.

We first consider the sufficiency of the evidence to support the verdict. Sherman Coppell operates and lives in the rear of a restaurant located next to, and in the same building occupied by, the Ben Powell Chevrolet Company at Trumann, Arkansas. Coppell testified that he and his son-in-law, Harry Eubanks, were occupying these living quarters on the night of April 21, 1957. About four o’clock the next morning they heard hammering noises in the office of the automobile company and observed a car backed up to the front of the building. When the telephone operator did not respond to his call in an effort to notify the police, Coppell threw a tub out the rear door of his restaurant toward the place where the office safe of the automobile company was located. He wrote down the Illinois license number of the car as Eubanks read it and saw two or three men leave the auto company store in the Ford automobile after putting some object in it.

The owner of the automobile company was notified and found his safe had been broken into and $980.00 in checks, money orders and cash missing in addition to an adding machine worth $50.00 and a 35-horsepower outboard motor and fuel tank. In response to radio alarms, several officers in three automobiles pursued and overtook the Ford automobile in which the appellants and a codefendant, G-eorge F. Garner, were riding. The missing adding machine, outboard motor and fuel tank were in the rear trunk of the car and the checks and money orders were scattered along the route. Three loaded pistols, a glove and a 1957 Alabama automobile license plate were also found in the car. Reaves admitted ownership of the car to arresting officers and had $1,048.96 in his possession and Neal had $48.46 on his person. Both parties had previously been convicted of felonies as charged in the information.

Appellants declined to offer any testimony in contradiction to that adduced by the state. When considered in the light most favorable to the state, this testimony was sufficient to sustain the verdict. Aside from the evidence directly connecting appellants with the burglary and larceny, we have frequently held that the possession of recently stolen property, if unexplained to the satisfaction of the jury, is sufficient to sustain a verdict of either larceny or receiving stolen property. Sons v. State, 116 Ark. 357, 172 S. W. 1029; Shoop v. State, 209 Ark. 498, 190 S. W. 2d 988.

Appellants next contend that the court erred in the admission of certain testimony regarding the ownership and identification of the adding machine and outboard motor recovered from the car occupied by appellants at the time of their arrest. T. M. Hunn, manager of the Ben Powell Chevrolet Company, testified that he compared the serial number of the adding machine recovered from appellants’ car with that taken from a list of company property kept in his office in the usual course of business and that the two numbers were identical. Another witness gave similar testimony with reference to the serial number of the outboard motor. Appellants now argue that this testimony was inadmissible as hearsay evidence under our holding in Jackson v. State, 226 Ark. 731, 293 S. W. 2d 699. In that case we held that the rule excluding hearsay testimony extends to written as well as oral statements, and that evidence otherwise incompetent as hearsay is not admissible merely because it is written or printed. The only objection made by appellant to the testimony at the trial was that the witness himself did not actually make the list or record and, hence, was not in position to know whether it was correct or not. It should be noted that neither the serial number nor the list of either item was ever offered in evidence. If it had been, the State would perhaps be correct in its contention that it would have been admissible under our statute (Ark. Stats. Sec. 28-928). The statement by the witnesses that they compared the two serial numbers was one of fact and not merely hearsay, although it might have been shown to be based on hearsay by further development of the evidence or cross-examination of the witness. Since this was not done and since the objection now argued was not made at the trial, it may not be raised for the first time on appeal.

It is next contended that it was error to admit testimony regarding the finding of the three pistols and other articles in the car used and occupied by the appellants without a search warrant. We have repeatedly held such evidence by arresting officers admissible in the absence of a search warrant. Knight v. State, 171 Ark. 882, 286 S. W. 1013; Garner v. State, 184 Ark. 1093, 44 S. W. 2d 1092. See also, Banks v. State, 207 Ala. 179, 93 So. 293, Cert. Denied 260 U. S. 736, 67 L. Ed. 488, 43 S. Ct. 96.

Appellants also objected to the introduction of photographs of the automobile company office and safe and the articles found in the automobile. These photographs, which were taken shortly after the burglary, were shown to he true and accurate pictures of the articles and place mentioned by those in a position to know. The admission and relevancy of such matters rests largely in the discretion of the trial court. We cannot say this discretion was abused, and conclude that the photographs enabled the witnesses better to describe, and the jury better to understand, the testimony. See Oliver v. State, 225 Ark. 809, 286 S. W. 2d 17.

Appellant Reaves urges error in the denial of his motion to disqualify the trial judge on account of alleged bias and prejudice against said defendant. The court directed that Reaves, who was on hail, he taken into custody during the trial when it was brought to the court’s attention that he had indicated that he might attempt to fix or tamper with the petit jury. Ark. Constitution, Art. VII, Sec. 20, provides: “No judge or justice shall preside in the trial of any cause in the event of which he may be interested, or where either of the parties shall he connected with him by consanguinity or affinity, within such degree as may be prescribed by law; or in which he may have been of counsel or have presided in any inferior court.” Ark. Stats., Sec. 22-113, fixes the fourth degree of consanguinity or affinity as that “prescribed by law” under this provision of the Constitution. As this court pointed out in Jones v. State, 61 Ark. 88, 32 S. W. 81: “There is no provision of our constitution or statutes that disqualifies a judge for prejudice. If having formed an opinion as to the guilt or innocence of a defendant on trial in a criminal case was a disqualification of a judge presiding at the trial, it would often be a difficult matter to find a judge that would not be disqualified. ’ ’

Whether a defendant remain on bail or be kept in actual custody during his trial for a felony is a matter within the sound discretion of the trial judge under our statutes (Ark. Stats., Secs. 43-710 and 43-2103). We find no abuse of that discretion here, and none of the matters mentioned in the constitutional provision and statute as disqualifying a judge to preside were shown.

Appellant Reaves also argues that the punishment is unreasonable and excessive, but the motion for new trial contains no assignment of error on this ground. Besides, it was within the peculiar province of the trial court to assess the punishment. This was done well within the limits fixed by statute and, under the testimony presented, we do not feel warranted in substituting our judgment for that of the trial court. See Cox v. State, 164 Ark. 126, 261 S. W. 303; Garner v. State, supra; McHenry v. State, 219 Ark. 401, 242 S. W. 2d 707.

The judgment is affirmed.

Robinson, J., concurs.