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

text:
    John Petty, Luther Ernest Myrick and William Neil Dodson v. State
    5221
    411 S. W. 2d 6
    Opinion delivered February 6, 1967

      Hamilton & Carson, for appellant.

      Brwce Bennett, Attorney General; Clyde Calliotte, A sat,, Atty. Gen., Fletcher Jackson, Asst. Atty. Gen., for appellee.
   Paul Ward, Justice.

The appellants (John Petty, Luther Ernest Myrick and William Neil Dodson) were charged by information on December 14, 1965 with the crimes of burglary and grand larceny for unlawfully, wilfully and feloniously breaking and entering the Ozark Bowling Lanes, Inc. in Fayetteville, and taking money in excess of $35.

The trial resulted in verdicts of guilty against all defendants on both counts fixing the punishment of each at two years imprisonment for burglary and one year for grand larceny — said sentences to run consecutively.

Upon appeal appellants raise eighteen separate points in an attempt to show reversible error.

Since we have concluded the cause must be reversed for reasons presently set forth we will not discuss many ’of the assignments of error or the testimony relating thereto. We deem it sufficient therefore to set out only a summary of the facts material to this opinion.

Facts. At approximately 4:30 a.m. December 13, 1965 the night watchman at the bowling lanes discovered that the premises had been burglarized. He also noticed footprints in the soft dirt near the rear door which appeared to have been pried open. He promptly notified the police. He had previously noticed three trucks parked at a filling station nearby. When he went over to ask rthe drivers if they had seen anything suspicious he found no one. He then returned to the bowling lanes for a few minutes and as he started back he noticed one of the trucks pulling out. He tried to flag the truck down with a flashlight but was unsuccessful, and then the other two trucks also drove away. When the police arrived they pursued the trucks and apprehended them at West Fork about ten miles south of Fayetteville. When the drivers professed no knowledge of the burglary they were permitted to continue and the police returned to the filling station. Upon arrival they were later informed by the attendant that he saw one of the drivers throw something in a trash can. Upon examination of the can they found certain articles which appeared to have been taken from the bowling lanes. Thereupon a “pickup” was radioed to other police cars.

At about 6 p.m. the same day the drivers were apprehended and arrested at Mt. Ida some 100 miles south of Fayetteville. The arresting officer placed the drivers in jail and took possession of the truck keys. Some six 'hours later two state policemen arrived,. took the keys and searched the trucks. Approximately twelve hours •later the trucks were searched again. Each search produced certain incriminating evidence. They found and 'took possession of filed down screwdrivers, an iron bar, a pair of boots, and two rolls of nickels with wrappers .like those used at the bowling lanes. At the trial these items were introduced in evidence over the objections of appellants.

One. It is here contended by appellants that their constitutional rights were violated because the search of their trucks took place without a search warrant, and that, consequently, these items were inadmissible in evidence. We think the contention of appellants must be sustained.

We are unable to distinguish this case, in principle or on facts, from the case of Preston v. United States, 376 U. S. 364, 11 L. Ed. 2d 777. In that case the police received word that three suspicious men had been parked 'in an automobile in the business district of Newport, Kentucky for several hours. They proceeded to the scene, questioned the three men, found they were unemployed, had no money, and could give no satisfactory explanation of their presence. Thereupon the police officers arrested them for vagrancy, searched them for weapons and took them to the police station. The car was first taken to the police station and then towed to a garage. A short while later the police went to the garage and forced their way into the locked trunk of the car and found certain articles which appeared to link them with an alleged conspiracy to rob a bank. Later there was a conviction of Preston and his companions abased on the introduction in evidence of the recovered articles. In reversing the convictions the Court made statements applicable to the issue here under consideration.

“Our cases make it clear that searches of motor cars must meet the test of reasonableness under the Fourth Amendment before evidence obtained as a result of such searches is admissible.”
“Here we may assume, as the Government urges, that either because the arrests were valid or because the police had probable cause to think the car was stolen, the police had a right to search the car when they first came on the scene. But this does not decide the question of reasonableness of a search at a later time and at another place . . .
The search of the car was not undertaken until the petitioner and his companions had been arrested and taken in custody to the police station and the car had been towed to the garage. At this point there was no danger that any of the men arrested could have used any weapons in the car or could have destroyed any evidence of a crime. . .”

Obviously there is a striking similarity between the vital facts in this case and the Preston case. There was no search warrant, the men had been arrested, they had no chance to escape, there was a lapse of time (much more in this case) between the arrest and the search, and there was no chance that the articles recovered would be moved or lost.

In the case of Williams et al v. State, 237 Ark. 569 (p. 573), 375 S. W. 2d 375, we cited Mapp v. Ohio, 367 U. S. 643, and said:

“ . . evidence illegally obtained is not admissible in the State courts, regardless of the previous holding of the State courts on this point.”

Two. There is no merit in appellant’s contention that it was error for the trial court to refuse to suppress the evidence at the beginning of the trial on the ground that they were not indicted by a grand jury. As previously mentioned, the appellants were brought to trial on an Information, and it is the contention of appellants that this was in violation of the Fifth Amendment to the IT. S. Constitution.

We have held many times that presentment by Information is not in violation of the IT. S. Constitution. In 1936 this State adopted Amendment No. 21 to our '■ constitution, which reads:

“All offenses heretofore required to be prosecuted by indictment may be prosecuted either by indictment or information filed by the Prosecuting Attorney. ’ ’

■For some of the recent decisions upholding the constitutionality of said amendment see:

Smith v. State, 218 Ark. 725, 238 S. W. 2d 649

Moore v. State, 229 Ark. 335, 315 S. W. 2d 907,

Monts v. State, 233 Ark. 816, 349 S. W. 2d 350,

Beckwith v. State, 238 Ark. 196, 379 S. W. 2d 19.

Three. Appellants say they were prejudiced because the court would not allow them (a) to “inquire as to the competency, character and reputation for untruthfulness of the state’s witness, Mr. Adney”, and (b) to question his employer in an attempt “to explore the competency, character and reputation for truthfulness” of Adney.

We feel that the above complaint is too general and indefinite to show reversible error, especially since it is not necessary to do so in this case. If there is another trial and this point arises, we suggest that the case of Wright v. State, 133 Ark. 16 (p. 25), 201 S. W. be examined.

Four. Appellants attempted to testify to certain conversations among themselves, but the trial court refused to let this testimony go to the jury. We think the court was right in excluding this testimony because it was self-serving. A similar situation was considered in the early base of Littlejohn v. State, 76 Ark. 481, 89 S. W. 463, where this Court said: “These questions were designated to elicit self-serving declarations, or might have done so, and the court ruled correctly in not permitting the witness to answer them.”

Five. It was not error for the trial court to refuse to allow appellants to ask a State witness what a third person had told him on a certain occasion. Whatever the third party may have said to the witness, would, of course, have been hearsay and therefore inadmissible.

Appellants have also made other objections to certain rulings of the court. We have carefully examined each of these objections and find no reversible error.

It follows from what we have said that the judgment of the trial court must be, and it is hereby, reversed.

Reversed.

Harris, C. J. & Fogleman, J. dissent.

Jones, J. concurs.

John A. Fogleman, Justice,

dissenting. The majority reverse this case on the authority of Preston v. United States, 376 U. S. 364, 11 L. Ed. 2d 777, 84 S. Ct. 881, which they say would render the search of the trucks, which were being driven by the appellants at the time of their arrest, unreasonable. I do not agree. I believe that a proper distinction can be made and I am unwilling to join in extending the rule of this case further than its direct holding or to anticipate that the Supreme Court of the United States would do so, and, thus, act upon what such anticipation might indicate. Nothing in any of the decisions of that court limiting the right of police officers to make a search without a warrant has restricted introduction of any evidence obtained other than by an unreasonable search. I cannot agree that the search in this case, without a warrant, was unreasonable.

There is no doubt that searches of motor vehicles must meet the test of reasonableness under the Fourth Amendment before evidence obtained thereby is admissible. But it is recognized in the Preston case that the same standards cannot be applied to searches of motor vehicles or other things readily moved as are applied to searches of fixed structures like houses. See, also, Carroll v. United States, 267 U. S. 132, 69 L. Ed. 543, 45 S. Ct. 280 (1925); Brinegar v. United States, 338 U. S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949).

As the writer of the opinion in the Preston case observed, what may be an unreasonable search of a house may be reasonable in the case of a motor vehicle. In the Preston ease, the original arrest was for vagrancy and there was little likelihood that evidence of this crime might be destroyed or removed. It was only after the search of the vehicle of those arrested that federal charges of conspiracy to rob a bank were placed. These .appellants were charged with a felony involving larceny, and the intent to commit larceny, and there were reasonable grounds for the officers to believe that incriminating evidence might be found in the trucks operated by appellants. "While there is little likelihood that appellants themselves could remove or destroy this evidence after having been incarcerated (as in the Preston case), it must be remembered that the trucks being driven by them belonged to their employer who, no doubt, would take steps to move the trucks on to their destination at 'the earliest possible moment. There would be no means of the officers knowing whether such drivers as did move the trucks would either inadvertently or deliberately remove or destroy any incriminating evidence. While the ''keys to the trucks may have been in the custody of the officers at Mt. Ida, it might not have been necessary to have obtained these keys to have moved the trucks and there was no way to know at what hour substitute drivers might arrive.

It must also be remembered that in the .Preston case, the motor vehicle was not searched at the place of arrest, but that it had been first removed by the offi'cers to the police station (where it was not searched) ' and then towed to a garage, apparently at the direction of the officers, where there was no likelihood that it would be removed from the jurisdiction. The conclusion ■that this vehicle was at all times under the complete and exclusive control of the officers seems justified, so that no reason existed why a search warrant might not have ’been obtained. Here, the distance from the place of arrest and the place the trucks were left was some 100 'miles and in a different county from the place of the alleged crime and where appellants were taken to be held for trial. Appellants were arrested by a state policeman stationed at the place of arrest between 6:30 and 7:00 p.m. by virtue of a “pickup” with arrest warrant numbers from Fayetteville given over radio at Clarksville, ‘■apparently at the behest of the Fayetteville Chief of Police. It is only reasonable to presume that this officer, at that time, knew nothing except what a warrant would 'state — that the appellants were charged with burglary and grand largency without any specifications or particulars. He could not have known what evidence to search for at that time. It appears that Chief Spencer and Lfc •^Griffin arrived at Mt. Ida at 12:30 a.m. of the following-day when they took charge of appellants and returned them to Fayetteville, along- with a pair of boots, some tools and some coins taken from the trucks. There is testimony that Officer Thomas was not present when Chief Spencer and Lt. Griffin came to pick np appellants. Thomas, the officer who made the arrests, then searched the trucks, within twenty-four hours following the original arrests, and found a sack of coins in one of the trucks.

The search by the officers who had information as to the alleged crime was made as soon after the arrest as it was reasonably possible to do. While there is no direct testimony, it seems that the inference is that the state policeman who actually made the arrests made his search within a reasonable time after he could have been expected to have detailed information about the offense charged.

The language quoted in the majority opinion from the Preston case indicates that its holding turns upon a search made not at the place of arrest, but “at a later time and another place.” This search took place at the place of arrest and as soon as it might reasonably have been expected to be done. It is significant to me that not 'only the Preston case but the holding in Stoner v. California, 376 U. S. 483, 11 L. Ed. 2d 856, 84 S. Ct. 889, decided the same day, is also based on the fact that the searches were completely unrelated to the arrests, both as to time and place.

While it is perhaps academic, it might also be considered that the officers would have had to find the solution as to jurisdiction and venue (as between Washington county and Montgomery county) for the issuance of a search warrant, and this at night when they would also have had to locate a judge or magistrate with the appropriate jurisdiction.

Because of these distinctions, I cannot agree that the search here was unreasonable under any standard heretofore laid down by the courts, state or federal.

I am authorized to state that Harris, C. J., joins in this dissent.

J. Fred Jones, Justice,

concurring. I concur in the results reached by the majority in this case, but on different grounds. I find no substantial competent evidence in the record that the appellants committed the crime for which they were convicted.


source: Caselaw Access Project

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

license: Public Domain

text:
    City of Fort Smith v. Warren H. DeLaet et al
    5-4055
    411 S. W. 2d 520
    Opinion delivered February 6, 1967
    [■Rehearing denied March 13, 19'67]

      Shaw, Jones & Shaw, for appellant.

      Harold G. Rains Jr. and Floyd G. Rogers and Theron Agee and Warren 0. Kimbrough, for appellee.
   Paul Ward, Justice.

This is an eminent domain proceedings filed by the City of Fort Smith to procure an easement and right-of-way fifty feel wide over a 137 acre farm owned by Warren DeLaet and wife and a 676 acre farm owned by Logan L. France and his wife. The easement was sought to lay a thirty-six inch water line to be used in transmitting water from lakes in Crawford County to the City. The line was located in accord with the plat attached, as an exhibit, to the City’s petition.

A jury trial, based on the pleadings and the testimony, resulted in a judgment in favor of the DeLaets for $3,500 and in favor of the Frances for $5,000.

On appeal appellant relies on two points: One, the trial court erred in failing to direct a verdict in favor of appellant at the close of all the testimony, and; Two, the verdicts are excessive.

One. There is no merit in this point. The sole contention of appellant here appears to he that it had already paid into court sufficient funds to reimburse appellees. When suit was filed appellant deposited the sum of $84.00 to compensate the DeLaets and $25.00 to compensate the Frances. As will appear hereafter, we are of the opinion that appellees are entitled to damages in excess of the deposits above mentioned. No other reason is advanced by appellant to sustain its contention under this point.

Two. After careful consideration of the entire record we are convinced that the judgments in favor of appellees are excessive, not being supported by substantial evidence.

(a) The testimony relative to damages to the De-Laet land is, in substance, as follows:

DeLaet owns 137 acres of good bottom land; has owned it five years; he considers it was worth $25,000 before the taking and $20,000 after the taking. Mr. Kimes, an expert witness, has been a real estate dealer for several years; he knows the land and knows where the pipe line runs. The testimony shows appellant has erected or will erect a concrete box on the right-of-way. Kimes thinks the land was worth $23,500 before and $20,000 after the taking. Mr. Bivens lives one-half mile away — knows the land and knows where the line runs. In his opinion the land was worth $25,000 or $26,000 before and $20,000 or $21,000 after the taking. He? is not a real estate salesman or an expert. Mr. Stanford, an e?xpert witness for appellant thought the land taken was worth $108.

(b) Mr. France owns 676 acres of land, well improved and knows the value of land in that vicinity. In his opinion the land was worth $100,000 before the taking and $60,000 after the taking. Mr. Craig, who deals in real estate and knows this land and the value of lands in that vicinity, and is familiar, with the location of the line, thought the land was worth $76,500 before the taking and $60,000' after the taking. Mr. Stanford thought the land actually taken was worth $40.50, and that the rest of the land was not damaged.

Thus it appears that appellant’s own witness considers the lands taken to be worth more than the amounts deposited in court.

The record discloses the following facts with reference to the two farms. DeLaet-. The pipe line runs 84 rods across his land and the right-of-way covers 1.12 acres. France-. The line runs 25 rods across his land and the right-of-way covers .36 of an acre.

It would serve no useful purpose to detail the somewhat lengthy testimony given by appellees and their witnesses. It suffices to say we do not find, in the testimony, any substantial evidence to support the amounts fixed by the jury. None of the witnesses made any explanation, other than heretofore set out, of the conclusions reached. No witness attempted to give any reason why the right-of-way adversely affected the value or use of the farms for which they were best suited.

In the case of Arkansas State Highway Commission v. Byars, 221 Ark. 845 (p. 851), 256 S. W. 2d 738, we approved this language:

“Juries are not permitted to base their verdicts on speculation and conjecture, and as to whether there is any substantial evidence to support the verdict is a question of law and not fact.”

In the above case, at page 849 of the Ark. Reports, we also said:

“Where a witness gives his opinion as to damages, such testimony must be considered in connection with related facts upon which the opinion is based. ’ ’

In the case of Arkansas State Higlvway Commn. v. Ptak, 236 Ark. 105 (p. 107), 364 S. W. 2d 794, there appears this statement:

“But the fact that Mr. Powell gave the property a before (the taking) and after (the taking) value does not, within itself, raise the testimony to that degree known as substantial evidence.”

Considering the testimony in this case in connection with the rules above announced, we cannot in good conscience, say the jury verdicts are sapported by substantial evidence.

Reversed and remanded.

Fogleman and Byrd, JJ., dissent.

Conley Byrd, Justice,

dissenting. In Arkansas State Highway Commn. v. Johns, 236 Ark. 585, 367 S. W. 2d 436 (1963), we said:

“Two of the witnesses, Bob Geliy and Joe Snelly, were real estate dealers in Crawford county. After having first stated that they were familiar with land values in the vicinity of the Johns property and that they had inspected this property, both thpse witnesses expressed their opinion as to the fair market value of the appellees ’ property before and after the taking. The appellant made an unsuccessful attempt to have this testimony 'stricken, on the ground that neither witness had stated the facts and reasons forming the basis for his opinion. In insisting that the testimony should have been excluded the appellant cites cases such as Ark. State Highway Commn. v. Byars, 221 Ark. 845, 256 S. W. 2d 738, holding that the opinion of an expert witness is not substantial evidence when the witness fails to give a fair or reasonable basis for his conclusions.

We think counsel have misconstrued the intent of our cases. It is true that a non-expert witness, such as a layman testifying about a testator’s mental capacity, must state the facts upon which his opinion is based before giving that opinion. Walsh v. Fairhead, 215 Ark. 218, 219 S. W. 2d 941. But there is no similar condition to the admissibility of an expert’s opinion.

An expert witness, after having established his qualifications and his familiarity with the subject of the inquiry, is ordinarily in a position to state his opinion. For instance, a physician might testify that he had examined a certain patient and found him to be afflicted with malaria. That testimony would unquestionably be admissible. Yet if this physician, on cross-examination, were forced to admit that he had found no recognized symptom of malaria and had based his conclusion solely 'upon the" fact that the patient had been bitten by a mosquito, then, under the rule in the Byars case, the witness’s opinion would no longer constitute substantial evidence.

It was incumbent upon counsel for the appellant to support their motion to strike by showing that the landowners ’ expert witnesses had no reasonable basis for their opinions. Counsel actually made no effort in that direction, the motion to strike Snelly’s testimony having been made without any cross-examination at all. Thus there was a complete failure to overcome the prima facie admissibility of the testimonv that was challenged. ’ ’

The property owners here followed the same procedure set out in the Johns case by establishing the qualifications of their witnesses and then having them testify to the before and after fair market values of their lands. Appellant, the City of Fort Smith, made no effort to show that the witnesses had no basis for their testimony.

On appeal, appellant has argued that there is no evidence of any severance damages, but its arguments overlook the effect of the proof of damages by giving the fair market values of the total lands before and after the taking of the easement.

I have found no case overruling the Johns case, which incidentally was tried in the same county and before the same judge involved in the case at bar. With the Johns case as my authority, I, too, would have tried this lawsuit in the same manner as did the trial court and lawyers.

Furthermore, I think that a basis for the severance damages of the appellees is shown. One of the benefits of owning property is the right to exclude others, and consequently the loss of this right affects the market value of the lands. The appellees were cattle farmers, and it makes no difference in this situation whether they were dairy or beef cattle farmers, for in each instance the pounds of milk produced each day or the pounds of beef produced each day has a direct relation to the grass consumed by the cows. Consequently, every entry on the premises by persons to whom the cows are not acclimated will cause a disturbance which cuts down 'on the amount of grass consumed by the cows.

Appellant has placed air blow boxes (concrete boxes) on the lands of both appellees. The boxes, being of a mechanical nature, obviously will require some type of maintenance. How many trips will result from maintenance and how many trips will result from unauthorized persons as a result of a pecan tree or a squirrel that the authorized personnel told' somebody about is a matter of speculation, but it is a common problem with cattle farmers. Those little concrete boxes would stick out like a sore thumb to a prospective purchaser of the lands.

While this argument may sound like “nit picking” to some, I have only to remind many business men that they prefer that their production lines be not interrupted by a candidate for public office. It gets down to the same reason: the interruption affects the volume of production.

For these reasons, I dissent.

John A. Fogleman, Justice,

dissenting. Certainly the verdicts in these cases seem extremely liberal, but I do not believe that we are justified in reversing the judgments on the lack of substantial evidence to support the verdicts on the record before us. As an appellate court, we are concerned only with errors of a trial court as a basis for reversal. This is a question never properly raised in the trial court, so it has not properly reached us.

There were two witnesses in addition to the owner who testified about values of the DeLaet lands and four, in addition to owner France, who testified about values of the latter’s property. Our attention is called to only one objection to the testimony of any of the witnesses and that was to the qualifications of the witness George Bivens for appellee DeLaet. Appellant then calls attention to a motion for directed verdict after appellee France had rested, motion having been made previously when appellee DeLaet rested, contending that the landowners had failed to sustain the burden of proof as to the value of the land actually taken, and that there had been no testimony by appellees except as to the before and after value of the land. He next directs our attention to a motion for a directed verdict at the conclusion of all the testimony on the basis of the evidence adduced by both sides.

No motion had been made to strike the testimony of any witness and no motion for a new trial was made. Appellant apparently relies on the motions for a directed verdict as the basis for his appeal. At no time did appellant make known to the trial court his objections to the lack of evidence sufficiently substantial to support a verdict, — action made sufficient by Ark. Stat. Ann. § 27-1762 (Repl. 1962).

We have long been committed to the rule in Arkansas that a verdict should not be directed when, taking that view of the evidence most favorable to the party against whom the verdict would go, there is any evidence to establish an issue in his favor. Barrentine v. Henry Wrape Co., 120 Ark. 206, 179 S. W. 328. This was called a well-established rule in Yahraus v. Continental Oil Co., 218 Ark. 872, 239 S. W. 2d 594. See, also, Great Southern Mutual Life Ins. Co. v. Smith, 177 Ark. 1194, 291 S. W. 441.

Sometimes the rule is stated conversely, i. e., a ver"diet should be directed against a party only when there1 is no evidence tending to establish an issue in his favor, when viewed in the light most favorable to him, as in Pugh v. Camp, 213 Ark. 282, 210 S. W. 2d 120, where ■the decision turned on the point that a jury issue exists whenever the only evidence on that issue is the testimony of a party, and the issue is made only because the testimony of a party cannot be taken as undisputed.

I am not unaware of the statement in Hawkins v. Missouri Pacific R. Co., 217 Ark. 42, 228 S. W. 2d 642, that a trial judge may grant a motion for directed verdict “only if the evidence would be so insubstantial as to require him to set aside a verdict for the plaintiff should such a verdict be returned by the jury.” The .court, however, reversed the action of the trial court in directing a verdict, so the decision did not change the rule from “any evidence”. This is further illustrated by the fact that none of the authorities cited for the statement require that the trial court direct a verdict in the absence of “substantial” evidence. One of these, St. Louis Southwestern R. Co. v. Britton, 107 Ark. 158, 154 S. W. 215, says quite the contrary. Another, Missouri Pacific Railroad Co. v. McKamey, 205 Ark. 907, 171 S. W. 2d 932, is only authority for the proposition that a motion for a directed verdict is properly denied when there is substantial evidence which would support a contrary Verdict. In the other, Ozan Lumber Co. v. Tidwell, 210 Ark. 942, 198 S. W. 2d 182. it is only stated that the question at issue should go to the jury whenever fair-minded men might honestly differ as to the conclusions to he drawn from the facts. While the Hankins case was cited as authority in Harper v. Missouri Pacific R. Co., 229 Ark. 348, 314 S. W. 2d 696, the court affirmed because there was no evidesn.ee to show certain requisite facts. The Hawkins case is also cited as authority in Wood v. Combs, 237 Ark. 738, 375 S. W. 2d 800, but only for the proposition that a question is made for the jury when reasonable men might differ as to which party was guilty of the greater degree of negligence. This opinion is also cited by its author in another case, Penny v. Gulf Refining Co., 217 Ark. 805, 233 S. W. 2d 372, but he stated that the court could not say that the statements relied upon by appellants there to make a fact issue constituted any evidence to support his theory. I have not found where the case is cited as authority for the proposition that a verdict should be directed where there is evidence to support a contrary verdict found to be not substantial.

The failure of a motion for a directed verdict to raise the question on which the majority choo'ses to act in reversing these judgments is pointed up in St. Louis Southwestern, R. Co. v. Britton, 107 Ark. 158, 154 S. W. 215. There it was said:

“* * * it has been repeatedly held that the circuit court has no power to determine the facts of the case and direct a verdict for either party, even though, if returned for the opposite party, it w¡ould set it aside as against the weight of the evidence. The only remedy m such cases is for the circuit court to promptly set aside verdicts that are clearly against the weight of the evidence.” [Italics ours]

It was also stated that in passing upon a motion for a new trial on the ground that the evidence is not legally sufficient to sustain the verdict, the> trial court is required to consider the element of improbability, and, if the trial judge should he of the opinion that the verdict i§ clearly against the preponderance of the evidence, it is his duty to grant a new trial. “Not so with this court”, said the writer of the opinion, adding that this court only reviews for errors and cannot reject testimony unless it is contrary to the laws of nature or is opposed to the physical facts in the case.

The question, whether the evidence is substantial enough to support the verdict, on appeal, is raised by the overruling of a motion for a new trial by the trial court. In St. Louis Southwestern R. Co. v. Ellenwood, 123 Ark. 428, 185 S. W. 768, where this court reviewed the rule, it was said:

“In view of the testimony in this case, once more we will take occasion to point out the distinction between the rules which govern trial courts and this court with respect to setting aside verdicts. This court has repeatedly declared the rule to be that, where the trial court has overruled a motion for a new trial based upon the insufficiency of the evidence, and where there is any substantial evidence to support it, the verdict of a jury will be upheld on appeal. The reason for the rule is: First, that the jury have weighed the evidence and found the verdict; second, that the circuit judge, who also heard the testimony from the mouths of witnesses and weighed the same, has by overruling- the motion for a new trial given the approval of his legal judgment to the verdict; third, this court cannot have the benefit of seeing- and hearing the witnesses and observing the peculiarity of their expressions while testifying, but only has the opportunity generally to read the substance of their testimony. Therefore the court has repeatedly declared the law to be that if, after a consideration of all the evidence, the trial court is of the opinion that the verdict of the jury is contrary to the weight of the evidence, it is the duty of that court to set aside the verdict. This distinction has been uniformly made. St. L. S. W. Ry. Co. v. Britton, 107 Ark. 158, 154 S. W. 215; McDonnell v. St. L. S. W. Ry. Co., 98 Ark. 334, 135 S. W. 925; Black- wood v. Eads, 98 Ark. 304, 135 S. W. 922; Richardson v. State, 47 Ark. 567, 2 S. W. 187; Catlett v. Railway Co., 57 Ark. 461, 21 S. W. 1062, 38 Am. St. Rep. 254. So under the settled rules of this court we must uphold a verdict on appeal if there is any substantial evidence to support it-”. ■ . c.

See, also, Kansas City Southern R. Co. v. Sparks, 144 Ark. 227, 222 S. W. 724; Northwest Arkansas Farmers’ Mutual Tornado Ins. Co. v. Osborn, 180 Ark. 757, 22 S. W. 2d 387.

. It is true that the court has said in some cases that a case ivill not be reversed by this court where the trial court is charged with error in failure to instruct a verdict, where there is any substantial evidence to support the verdict. See, e. g., Chicago R. I. & P. Ry. Co v. Houston, 209 Ark. 217, 189 S. W. 2d 904; Huffman Wholesale Supply Co. v. Terry, 240 Ark. 399, 399 S. W. 2d 658.

It has also been said that it is error for the trial court to direct a verdict if there is any substantial evidence tending to establish an issue. Shearer v. Morgan, 240 Ark. 616, 401 S. W. 2d 21. This is a far cry from saying that a trial judge should determine whether the evidence favoring one against whom a verdict would be directed is substantial, and, if not, that he commits error in failing to direct the verdict. The Huffman case, decided March 7, 1966, and the Shearer case, decided April 4, 1966, cited the Barrentme case as authority so they, this recently, did not change the rule of the Barrentine case but recognized it.

I am fully aware of the fact that Act 555 of 1953, Ark. Stat. Ann. § 27-2127.5 (Eepl. 1962), made motions for a new trial unnecessary, but the motion was not done away with and this would be an appropriate use of the motion. The Act definitely did not change the rule so that a motion for a directed verdict raised the question whether the evidence was “substantial’’. As to this point, the situation is entirely different from that which obtained in Southern National Insurance Co. v. Williams, 224 Ark. 938, 277 S. W. 2d 487. There it was held that Act 555 made it no longer necessary to challenge the excessiveness of a jury verdict by a motion for new trial. The conflict of the inference of the section of the Act eliminating the necessity of a motion for new trial with that of the section [Ark. Stat. Ann. § 27-1762] requiring that the trial judge be given an opportunity to avoid an error of his own making was resolved by reason of the fact that an excessive verdict is attributable to the jury and in no way to the judge. Thus, this court can act just as well as the trial court. On the other hand, it is inevitable that in determining the question whether evidence is substantial there be some weighing of the testimony which requires observation of the appearance, manner and behavior of the witnesses— something not apparent from a cold typewritten transcript.

In addition to filing a motion for new trial, appellant might have earlier raised the question as to whether the evidence was “substantial” by other means. If the examination of appellees’ witnesses demonstrated that there was no reasonable basis for their opinions, their testimony should have been stricken on motion to strike. Arkansas State Highway Commn. v. Russell, 240 Ark. 21, 398 S. W. 2d 201.

If we are to remain truly an appellate court, we must consistently require that questions be properly raised in the trial court and that court given a proper opportunity to act before we will consider them. I would affirm the judgment of the lower court for the reasons herein stated. I would also affirm on the basis of the reasons stated by Justice Byrd in his dissent.


author: Paul Ward, Justice.

text:
    C. Curley Gerhardt v. Plastics Research & Development Corp.
    5-4069
    411 S. W. 2d 1
    Opinion delivered February 6, 1967

      Franklin Wilder, for appellant.

      Shaiu, Jones & Shaw, for appellee.
   Paul Ward, Justice.

This is an action to cancel a written contract and to recover on cross-complaint. Some of the pertinent facts which are not in dispute are briefly summarized below.

C. Curley Gerhardt (appellant) “invented” a product called “Dome-Sight” battery cap. This is a product which fits on top of each cell of an automobile battery, the purpose of which was to make it easy to determine whether the battery needed water. On June 2, 1965 he entered into a rather lengthy written contract with the Plastic Research and Development Corp. (appellee) wherein it was agreed that when and if a patent was secured on the product it would be manufactured and sold by appellee, and appellant would receive a specified percentage of the net sales. Within a few weeks after the contract was executed it was learned that no patent could be secured. On December 14, 1965 appellant filed suit in chancery court to cancel the contract. Appellee answered, praying judgment for money advanced appellee under the terms of the contract and for other expenses incurred.

At the conclusion of the trial the court cancelled the contract (as requested by appellant) and awarded appellee judgment against appellant in the amount of $8,041.61.

On appeal appellant makes three separate conten- , tions for a reversal but they can be disposed of by answering two questions: One, is appellant liable to ap'pellee in any amount, and; Two, is the judgment excessive?

One. The answer to this question is in the affirmative, but to explain the reason it is necessary to examine briefly the terms of the contract and the events following its execution.

The agreement provides: (a) appellant was to secure a patent on the product, and appellee was to advance some of his expenses in doing so; (b) if, however, a patent could not be secured all such advances were to ’,be repaid to appellee; (c) appellee, at his own expense, was to manufacture and sell the product, and appellant was to receive 5% of the net profits; (d) appellee was ' to have exclusive franchise during the life of the patent and any extension thereof; (e) during- the early stages of the operation appellee was to advance appellant $300 per month (beginning June 2, 1965) until mass production began, but all such advances were to be refunded to appellee out of appellant’s 5% of the net proceeds.

The record discloses: (a) It became known to both parties about the first of August, 1965 that a patent could not be obtained; (b) following this turn in events appellant and appellee got together and orally agreed to continue the undertaking under the terms of the written contract; (c) pursuant to this oral agreement appellee continued to make molds and to prepare for mass production until appellant filed this suit on December 14, 1965 to cancel all contracts. At that time appellee asked to be reimbursed for expenses incurred if the contract be cancelled.

The trial court found that “the parties agreed orally to continue under the same terms and conditions of said contract ...” and also agreed that appellant would reimburse defendant for its expenditures if defendant would continue to give plaintiff Three Hundred ($300) per month, would continue to work for production of the article, and would aid in the sale and distribution of same.

It is our view that, under the above situation, appellant had a right, at any time, to cancel all contracts and stop all operations thereunder, but that he had no right to do so without reimbursing appellee for expenses incurred. It is well settled by many decisions of this Court that an oral agreement to alter a written contract is valid. See: Byrd v. Bertrand, 7 Ark. 321; Elkins v. Aliceville, 170 Ark. 195, 279 S. W. 379; Dodson v. Wade, 193 Ark. 534, 101 S. W. 2d 182, and Swift v. Lovegrove, 237 Ark. 43, 371 S. W. 2d 129. It is not denied that appellee did incur considerable expense in attempting to comply with the contract as modified.

It was contended by appellant that the product being produced by appellee was defective, but the record contains ample testimony to justify the court in finding that the defects were minor, that they were to be expected at first, and that appellee was in the process of correcting same when this suit was filed.

Two. The trial court found that appellee had incurred expenses in the sum of $8,387.42 in trying to comply with its contracts with appellant. In our opinion the court’s finding is in accord with the weight of the evidence.

Appellee introduced in evidence, without objection, its Exhibit No. 3. This exhibit itemizes in minute detail (including dates, check numbers and explanations) a total expenditure of $8,387.42. The exhibit was identified by appellee’s witness, Loren Jones, an accountant, who testified:

“Q. Did you miake tliis Analysis'?
A. I did.
Q. From what was it taken?
A. Directly from the ledgers, journals, accumulations and work sheets of Plastics Research and Development accounting department.”

As previously pointed out, no objection was made by appellant to the introduction of the exhibit, he did not ask to see the original records, and he introduced no testimony to show any item of expense was "incorrect. We must, therefore, sustain the court’s finding on this point.

Affirmed.


author: Lyle Brown, Justice.

text:
    Mid-South Insurance Company v. First National Bank of Fort Smith
    5-4056
    410 S. W. 2d 873
    Opinion delivered February 6, 1967

      E. Clay Robinson, for appellant.

      Daily & Woods, for appellee.
   Lyle Brown, Justice.

Summary judgment was awarded appellee, First National Bank of Fort Smith, against appellant, Mid-South Insurance Company. Mid-South appeals from the award, contending there were substantial issues of fact to be first decided. First National filed this suit against three corporations and one individual, one of the corporations being Mid-South. The instrument forming the basis of the litigation was a promissory note in the principal sum of $150,000.00. The note was executed by Handley Trading Company, Inc., and endorsed by National Automobile Insurance Underwriters of Arkansas, Inc. and Oscar E. Chambers. All of these parties, along with Mid-South, were the defendants. Service could not be obtained on Handley and National; and Chambers does not appeal from the summary judgment against him.

Mid-South was not an endorser on the note. First National contends that Mid-South, for valuable consideration received from National Automobile Insurance Underwriters, assumed the balance of the note, being $70,000.00. First National attached to its complaint photocopies of Mid-South’s records, and of bank records in support of its contention that Mid-South had assumed ■the obligation and had in fact reduced the note to $45,-000.00. In its pleadings Mid-South denied it had ever contracted any obligation to First National, and further, that Mid-South could not legally assume the obligation on this note.

In challenging the summary judgment entered by the court below, Mid-South contends there is no proof that Mid-South ever contracted any obligation to the bank. The answer to this contention must be in the negative.

A photocopy of a record entitled Minutes of a Special Meeting of the Board of Directors of Mid-South Insurance Company was introduced. The item of business was the proposed repurchase by Mid-South of its agency agreement held by National Automobile Insurers, the consideration being the assumption by Mid-South of the balance of the involved note. The Board of Directors approved the purchase and directed its officers to execute the instruments necessary to complete the transaction. Thereafter, Mid-South made three payments on the principal and interest exceeding $25,000.00.

It is highly significant that Mid-South did not controvert, by affidavit or otherwise, the truthfulness of the statements contained in the minutes of the special meeting; nor did they dispute the signatures of the officers of the company contained thereon. The three substantial payments alleged to have been made were conceded.

The motion for summary judgment was controverted by filing an affidavit of a special auditor. On or near March 26, 1966, this auditor is alleged to have inspected the available records of Mid-South. He stated that he could find nothing pertaining to the aforementioned resolution, no record of the assumption of the bank note, and no record of the agency transfer. It should be noted that this auditor was retained to perform a special audit, in an effort to ascertain what occurred a year prior tq that audit. It should also be noted that the control of Mid-South had in the interim changed hands three times. So what this auditor could not find a year later does not controvert written instruments unimpeachably establishing the transaction — all of which were previously relied on by the Insurance Commissioner and by the court in the rehabilitation proceedings, and served as a basis for the expenditure of over $25,000.00 by Mid-South in carrying out the agreement. Mid-South further certified the existence of the bank debt in the Contract for Rehabilitation of Mid-South Insurance Company, dated April 20, 1965.

To say that Mid-South never contracted any obligation to the bank may in the strictest sense be correct; yet they assumed an obligation owed the bank and made substantial performance thereon. Mid-South’s board authorized the assumption of the note under date of March 1, 1965. From that time until July 1st, all payments made on the note were made by Mid-South. Such substantial payments made exclusively by Mid-South would indicate it had assumed the debt and caused the bank to forebear any proceedings against the original maker and endorsers. By the time the bank did take action, Handley and National could not be located for service.

' Summarizing, the bank supported its Motion for Summary Judgment with the following documents:

•:í! 1. The original note in the principal sum of $150,-000.00, showing that Mid-South had unquestionably made the last three payments thereon totaling $25,000.00 and accrued interest;

. . 2. Call and Waiver of Special Meeting of the Board ©f Directors of Mid-South, signed' by all the- directors;

3. Minutes of Special Meeting of the Mid-South Board, wherein the board approved the assumption of the indebtedness owed First National Bank. The balance was agreed to be $70,000.00. This instrument bears the signatures of the president and secretary of Mid-South;

4. Contract for Rehabilitation of Mid-South Insurance Company, in which contract Mid-South listed its liabilities, one of which was this same bank note. This contract contained six signatures;

5. Petition of Harvey G. Combs, Insurance Commissioner, State of Arkansas, in a separate action in the same court, asking the circuit court to approve the plan of rehabilitation set forth in Item 4 above.

In the face of all these instruments, the execution of which was participated in by at least twelve different persons, Mid-South filed a single instrument executed by the special auditor. In a pleading styled Amended and jSubstituted Answer, Counter-Claim and Cross-Complaimt, Mid-South says it received no consideration for the alleged assumption of the obligation to the bank, hut admits that it paid $20,000.00 on the note. Thus we see payments are admitted to have been made under some type of assumption of obligation, which action Mid-South defends on the ground of failure of consideration. The minutes of Mid-South’s board meeting do in fact describe the consideration, the same being a reassignment of an agency agreement by National Automobile Insurers. Mid-South tendered nothing to support the allegation.

Thus it is clear that Mid-South offers nothing to substantiate its real defense except an unverified pleading. This does not meet the requirements of our summary judgment procedure.

In Epps v. Remmel, 237 Ark. 391, 373 S. W. 2d 141 (1963),' this court approved the following statement from United States v. Dollar, 100 F. Supp. 881 (1951): “The motion [for summary judgment] requires the opposition to remove the shielding cloak of formal allegations and demonstrate a genuine issue as to a material fact. ”

In the face of documentary support for summary 'judgment, Mid-South would force the case to trial by merely contending that an issue exists, without any showing of evidence. This would defeat the whole purpose of summary judgment procedure.

One other point is relied on by Mid-South, namely, that the repurchase of an agency agreement would be classed as an investment and that it is not an eligible investment for an insurance company under Ark. Stat. Ann. § 66-2603 (Bepl. 1966). Mid-South did not pursue this contention in the trial court. Nowhere is such, an allegation set out in the pleadings, nor was it raised on the motion for summary judgment. If such allegation as is now made were a defense it certainly should have been placed before the trial court, with appropriate proof, and that court given an opportunity to rule therein.

Affirmed.


text:
    Harry A. Parker, Jr. etc. v. James Price et al
    5-4071
    411 S. W. 2d 12
    Opinion delivered February 6, 1967

      Shackleford & Shackleford, for appellant.

      Bernard Whetstone and Rogers & Armstrong, for appellee.
   Lyle Brown, Justice.

This action for damages arose from a collision between two motor boats near Calion, Arkansas, on the Ouachita River, a navigable stream of the United States. Both boats were pleasure craft, and both were pulling skiers. Jerald Carney, a minor, along with his father, Homer Carney, plaintiffs below, were each awarded damages as against two of the five defendants, Harry Parker and Eric Davis. The appellant here is Harry Parker, and he appeals — not from the ‘judgment awarded the Carneys — but from judgments in favor of five third party defendants. The appeal is grounded on the contention that the trial court erred in giving two instructions.

The lead boat was owned by James Price and being operated by Billy Price; Danny Washington and Russell Hale occupied the rear of the lead boat and served as lookouts. This boat was towing a piece of styrofoam bn which Jerald Carney and Johnny Price were riding, the styrofoam broke, throwing Carney into the water, 'where he was struck by a boat operated by defendant, Harry Parker. Eric Davis, Parker’s co-defendant, was skiing behind the boat operated by Parker. The Carneys also joined as defendant the owner of the boat, Walter Horn. This boat was originally loaned to Eric Davis, Jimmy Duffey, Tom Cranston, and Harry Parker. A joint venture was alleged as against all the named parties.

The defendants made the owner and operator of the lead boat, the two lookouts, and Johnny Price (riding on the styrofoam) all third party defendants, alleging specific acts of negligence and joint venture.

' Parker’s appeal is grounded on the single contention that the substantive law of admiralty applicable to the case was not applied by the trial court. The two instructions complained of deal with standard of care and with lookout.

Standard of Care. Parker contends that the standard of care imposed on a boat operator in navigable ^waters is the exercise of due diligence and maritime skill. He offered the following instruction:

“You are instructed that a person in charge of the operation of a vessel must at all times exercise due diligence and maritime skill to avoid injury to others, by collision or otherwise. He should use such care as is reasonable under the circumstances then existing. The conduct of the operator of a vessel is to be judged in light of the danger, emergency, and conditions that existed at the time and place of the accident.”

The court refused the instruction and gave court’s Instruction No. 8:

“Now in connection with these Interrogatories which I have just read, you are instructed that it was the duty of all persons involved in the occurrence which gave rise to this case to use ordinary care for their own safety and the safety of others. When I use the words, ‘ordinary care,’ I mean that care whieh a reasonably careful person would use under circumstances similar to those shown by the evidence in this case. It is for you to decide how a reasonably careful person would act under those circumstances and, of course, the failure to use such ordinary care is negligence.”

Here, it should be noted that in the instruction immediately preceding- No. 8, the court told the jury that the term negligence means ‘ ‘ the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence in this case.”

The crux of Parker’s argument is that it was error for the court to omit the phrase “due diligence and maritime skill” from its instruction to the jury.

We are not in disagreement with appellant Parker’s general statement of the maritime law, namely, that per=sons in charge of watercraft must exercise due diligence and maritime skill to avoid injury to others. But this is simply another way of saying the operator should act as a reasonably careful person would act under the circumstances.

Appellant cites 48 Am. Jur. 153, § 227, to support the requirement of due diligence and maritime skill. Biit that same section, continuing, recites that the requirement is satisfied by the use of such care as is reasonable under the circumstances. In the ease at bar, the trial court properly permitted two witnesses of considerable experience with watercraft to testify concerning facts constituting good or poor seamanship. They were also permitted to give opinion testimony based on hypothetical questions.

Thus, the jury had for its consideration testimony going to the main issue — whether the boats in question were operated with reasonable care under all the circumstances, including, but not limited to, maritime skill. To use the phrase “maritime skill” might well have tended to place undue emphasis on the testimony of these two expert witnesses and to detract from the ultimate test of “reasonable care under the circumstances.” The phrase “maritime skill” could well be interpreted by jurors to connote a variety of meanings, such words as “art,” “dexterity,” “ingenuity,” and “wisdon,” being well known synonyms of the word “skill.” Therefore, “maritime skill” could to a juror connote the highest ■degree of caution and skill, when the law requires only reasonable care. Appellant did not incorporate in his proffered instruction any definition of maritime skill.

There is yet another fallacy in Parker’s proposed ■Instruction No. 1: it could well have indicated to the jury a double standard of care, namely, due diligence and maritime skill, and, additionally, reasonable care under the circumstances.

Greathouse v. Wolff (Mo. App.), 360 S. W. 2d 297 (1962) is a case which arose out of a water skiing accident in navigable waters. There we find an instruction which comports with our theory that the court’s No. 8 'was correct. It is a long instruction, and to set it out verbatim is not necessary. Summarizing, the test of ordinary care ivas applied to that case. The phrase “exercise of ordinary care” appears three times in that instruction. Nowhere therein does the phrase “maritime skill” appear.

Maritime eases are replete with awards based on specific finding's of failure to use ordinary care. To cite 'a few: Malmin v. Sternheim, 202 Ill. App. 214 (1917); Rautbord v. Ehmann, 190 F. 2d 533 (1951); and U. S. v Meckling, 141 F. Supp. 608 (1956).

Lookout. Appellant Parker next complains of Instruction No. 10 (2), this being an instruction on look-tout :

“No person shall operate a vessel on any waters of the State of Arkansas for towing a person or persons on water skis, or an aquaplane, or similar device unless there1 is in such vessel a person, in addition to the operator, in a position to observe the progress of the person or persons being towed. Provided, however, if the towing boat is equipped with a wide angle marine rear view mirror in a position to observe the skiers being towed, the above requirement shall not apply, and, . . . .”

In Instruction No. 11 the court told the jury a violation of this rule could he considered by them as evidence of negligence.

Instruction No. 10 is based on a statutory rule. Ark. Stat. Ann. § 21-232(b) (Repl. 1956).

Admiralty law does not specifically require the presence of a person in addition to the operator to assist the latter in keeping a lookout. T. 33 U.S.O.A. § 351 is as follows:

“Usual additional precautions required {Rule 26). Nothing in Sections 302-352 of this title shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case. R. S. § 4233; Feb. 19, 1895, c. 102, § 1, 28 Stat. 672; Mar. 3, 1897, c. 389, § 13, 29 Stat. 690; May 21, 1948, c. 328, § 4, 62 Stat. 250.” (Emphasis supplied.)

It is the position of appellant Parker that our statute requiring a posted lookout in addition to the operator is in conflict with admiralty law. We gather it to be the position of appellant that Congress has preempted 'the field of navigation in navigable waters. So appellant ‘would argue that since Congress has not enacted a law requiring an additional person for a lookout, the State ]is prohibited from so providing. This position is not tenable.

Reynolds Channel, Long Beach, New York, is a navigable waterway and within the territorial limits of /the Town of Hempstead, New York. Hempstead passed an ordinance governing the operation of motorboats on this waterway. In People v. Bianchi, 155 N. Y. S. 2d 703 (1956), Bianehi appealed from a conviction under two sections of the ordinance. One section required careful and prudent operation and at a speed which would not endanger the life or property of another. The other section fixed the maximum speed in the channel at 12 miles per hour, and in premises designated as basin, dock anchorage, or bathing areas, four miles per hour. The convictions were affirmed. The Bianehi case furnishes an exhaustive treatise on the question of conflict between federal and state authority. The following statement and cited authorities support the view that the theory of federal pre-emption has long been discarded:

“It may be true that the United- States Constitution confers upon the Federal Government jurisdiction over interstate commerce but it does' not follow from this that the state or its derivative creature, the town, is thereby prohibited from' exercising its police power to regulate a local' incident of that commerce. This has been the judgment of the United States Supreme Court in an unbroken line of cases from Cooley v. Board of Port Wardens, 12 How. 299, 13 L. Ed. 996, to the present day. Willson v. Blackbird Creek Marsh Co., 2 Pet. 245, 7 L. Ed. 412; State of California v. Thompson, 313 U. S. 109, 61 S. Ct. 930, 85 L. Ed. 1219; Parker v. Brown, 317 U. S. 341, 63 S. Ct. 307, 87 L. Ed. 315.
“In the Cooley case the view is sanctioned that the state government possesses a commerce power concurrent with that of the Federal Government as to the local incidents of interstate commerce.”

With further respect to this-particular field of navigation, the Bianehi case makes this significant statement, which well fits the case at bar:

“While it is true, as the defendant asserts, that the Federal Government has an interest in the field of navigation (just as it has an interest in other areas over which the nation and the states have been held to possess concurrent jurisdiction), in the field of navigation [sic], the federal interest is not so dominant, and the problems involved are not so completely national in character, as to make any or all local regulation unthinkable where the Federal Government has acted. On the contrary, dissimilar conditions m different parts of the country require that special consideration and handling that only a decentralised treatment ccm afford. (Emphasis added). Furthermore, the federal regulatory scheme established in the Motorboat Act of 1940 is not so complete as to make reasonable the inference that Congress left no room for the states to supplement it.”

We think it highly significant that Congress has, in fact, encouraged the enactment of uniform State legislation governing pleasure boats. In U. 8. Code Congressional omd Administrative News, Vol. 3, p. 5228, is recited the history surrounding the Federal Boating Act of 1958. The Committee on Interstate and Foreign Commerce recommended the passage of the bill which, among other things, would “provide co-ordination and co-operation with the states in the interest of uniformity of boating laws. . .” The Committee further observed that a model State bill had been prepared by the Council of State Governments and would possibly be considered in 1959 by forty-five States which would then be holding legislative sessions. The Committee placed its stamp of approval on model State laws governing boating in these words:

“There is particular urgency in passage at this session because 45 States will hold legislative sessions in 1959, at which the model State bill developed by the recreational boating regulation subcommittee, committee on suggested State legislation, Council of State Governments, could be considered. Enactment of this model bill by the States would provide substantially uniform Federal and State boating safety laws and regulations and enforcement procedures.
“Such, a development would be vastly in the interests of the millions who now are finding recreational boating an increasingly alluring pastime, by obviating conflicting requirements when State lines are crossed and by achieving greater uniformity of regulations in the several States.
“It would mark, too, a healthy advance in coordination of legislation and enforcement as between the States and the Federal Government, by permitting State regulation and enforcement on navigable waters which heretofore have been the sole province of the Federal Government.”

Our Legislature in 1959 enacted Act No. 453, a comprehensive act regulating boats. The stated purpose of the act was to promote safety in respect to the operation of vessels “and to promote uniformity of laws relating’ thereto.” Thus, it is reasonably certain that our act stems from the model State bill mentioned in the report of the Committee on Interstate and Foreign Commerce. Boating’ laws enacted by all of our neighboring States are very similar to ours, and further confirm the belief that ours is a model act.

Appellant Parker contends that under admiralty law a special lookout is not necessary “if the bridge actually observes what a lookout should have seen.” He cites Osaka Shosen Kaisha Ltd. v. Angelos, Leitch & Co. Ltd., 301 F. 2d 59 (1962), and United States v. S. S. Soya Atlantic, 330 F. 2d 732 (1964). In those cases there were men on the bridge or the forecastle, or both, and it was found to be a fact that they observed what a special lookout should have seen had he been present. In the case before us, Parker was the sole occupant of the boat which struck Carney; Parker was charged with failure to maintain a lookout. Just ahead of him was a boat pulling two skiers; he was pulling one skier. Thus, he owed a duty to keep a lookout both ahead and behind. He had no rearview mirror. In this situation it was for the jury to determine, under appropriate instructions as applied to the evidence, whether a proper lookout was being maintained. Quoting from Osaka, cited by appellant, a proper lookout is said to be a factual question and a duty which, “is an inexorable requirement or prudent navigation.”

Finally, in support of his theory that the substantive law of admiralty precludes the giving of an instruction based on our statute requiring a posted lookout, Parker cites Intagliata v. Shipowners & Merchants Towboat Co. (Calif.) 159 P. 2d 1 (1945). At that time a characteristic feature of maritime law was to the effect that if both parties were at fault the damages would be equally divided. In the Intagliata case the trial court adhered to the rule of contributory negligence which generally precludes a plaintiff from recovering damages. The appellate court held that comparative negligence is a principle of admiralty and to ignore it would be to contravene an essential purpose expressed by an act of Congress. When Arkansas adopted a model boating code which recites that the absence of a rearview mirror and a posted lookout can be considered as evidence of negligence, it certainly did not contravene ‘ ‘ an essential purpose exprssed by an act of Congress.” The laws enacted by Congress require a lookout. Maritime cases recognize lookout to be a duty which “is an inexorable requirement of prudent navigation. ” To require one towing a skier to either equip his boat with a rearview mirror or post a lookout is a most sensible requirement. Rather than contravene federal law, it can reasonably be said to aid in the enforcement of prudent navigation.

Since we hold that appellant’s objections to the instructions are without merit, we do not reach questions raised by appellees.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Ark. State Highway Commn. v. C. V. Steed & Jeff Steed
    5-4109
    411 S. W. 2d 17
    Opinion delivered February 6, 1967

      George 0. Green and Joe Gunter and Robert H. Hall, for appellant.

      Carroll C. Cannon, for appellee.
   John A. Fogleman, Justice.

Appellant took the fee simple title to 27.2 acres from one Jeannette Becker •Lenygon together with certain construction easements over her lands consisting of approximately 580 acres >being used for agricultural purposes. This was right-'of-way for construction of Interstate Highway No. 40, a controlled access highway in St. Francis County, Arkansas. Its complaint and declaration of taking were filed on the 21st day of February, 1963. Although the property was under an agricultural lease to appellee C. V. Steed, expiring at the end of the year 1963, through which he and appellee Jeff Steed, as farming partners, were in possession of the property, they were not made parties, nor did they have any notice of the taking uhtil May 16th when surveyors began ‘ ‘ stomping his fresh levees down”, and after which the driving of piling for highway construction was commenced. Summons was issued for and served on appellees on June 12, 1963. When appellees first became aware of the taking, they had already planted and commenced irrigation of a rice crop on the leased lands and had also planted cotton and beans.

The right-of-way taken ran diagonally1 across the Lenygon lands from a point near the northeast corner to a point near the southwest corner. The Steeds had farmed a substantial portion of the lands in rice production, using two wells and a system of canals for the necessary irrigation. They also used the lands for fall and winter pasture.

Appellees promptly filed their answer on June 24, 1963, claiming that by reason of the taking of the land and crops thereon planted by them, they would be damaged in the sum of $820.00 and as a result of the taking of the strip of land, they were unable to properly water, plant and cultivate the remaining acreage and were damaged in the sum of $7,155.00, their irrigation canals having been blocked and the drainage interfered with. They 'also claimed damages for the deprivation of the use of the land taken by appellant during the year 1963, saying that it was impossible at that late date to get other lands for farming.

The case was tried as to both landlord and tenant and separate awards were made to each by the jury. The jury awarded damages “to the leasehold” in the sum ’of $400.00; to crops on the right-of-way, $1,420.00; and to crops off the right-of-way, $6,000.00. This appeal is only from that part of the judgment awarding damages for the crops growing off the right-of-way. We do not know any of the instructions that the jury considered in arriving at its verdict, except for two requested by appellees and given by the trial court, as the record was abbreviated to cover only those points urged by appellant for reversal.

No demurrer to appellees’ answer, motion to strike, or reply was filed by appellant. The case was called for 'trial and after a jury was selected, but before opening statements were made, appellant’s attorneys asked to be heard in chambers. At this hearing appellant, for the first time, stated its contention that the claim for crop damage to the residual acreage was actually in tort against either the highway commission or its contractor and not recoverable in the eminent domain action. The trial judge ruled that the sole question was whether or not the water stoppage claimed by appellees was shown by the evidence to be a damage caused by the taking and following the construction of the highway. The judge also went on to say that if the damage was caused by the negligence of someone not a party to the suit, 'it would be a tort action, but he did not believe that the court could say this solely on the allegations of the pleadings filed. In order to clarify his ruling, the judge stated that proof which was in accordance with the pleadings would be accepted and permitted and that appellees would be permitted to offer testimony proving any damages occasioned by the taking of the property and the construction which followed, and if there was evidence that the damage was caused by the negligence of someone and not by the taking, then the court would pass upon the question. Appellant objected and it was understood that the objection would go to any testimony admitted under this ruling. From time to time during the presentation of the evidence, this objection was renewed.

At the conclusion of all the evidence, appellant unsuccessfully moved to strike all evidence with regard to damages to residual tracts, apparently on the contention that these damages caused by the taking were “incidental”, so that appellees would be entitled to recover only for damages to those crops on the right-of-way. The court then gave the instructions requested by appellees. One of these stated the measure of damages to a crop to be the difference in the fair market value between the crop that the land would otherwise have produced and the crop actually produced, less the difference between what it would have cost to have produced, harvested, and marketed an undamaged crop and what it did cost to produce, harvest, and market the actual crop. The other told the jury that the tenant was entitled to just compensation for damages to his crops on land adjoining land taken by condemnation and farmed as a single operation which they found from a preponderance of the evidence resulted from the taking.

The points relied on here are: (1) That the instructions are erroneous because they permitted the jury to consider elements of damages which amounted to a counterclaim against the state prohibited by Article 5, § 20 of The Arkansas Constitution and, (2) that the court erred in permitting testimony relating to crops growing on lands not taken, as this constituted a constitutionally prohibited suit against the state. No objection relating to these points, other than those herein-above stated, was made.

For the purposes of this opinion, it is sufficient to say that the testimony of appellees and the witnesses called by them tended to prove damages to the crops ,on lands of the leasehold remaining after the taldng, 'under the rules outlined by the trial judge, and that these damages were caused by removal of fences ■ crossing the right-of-way, blocking of drainage on the right-of-way, blocking of an irrigation canal crossed by the right-of-way so that there was no canal there at the time of the trial, and damaging of a water gate and bridge during construction of the highway for which the lands were taken. There is no evidence on behalf of appellant in the abbreviated transcript and nothing to indicate that any was offered by it as to the claim of appellees. It •was stipulated that no one had any right to cross the limited access highway with a rice canal or a bridge.

A sufficient answer to the contention of appellant . that appellees ’ right of recovery is against a contractor, if anyone, lies in the failure to show that the construction was undertaken by the letting of a contract by appellant. Aside from statements of appellant’s attorneys and assumptions made by them in putting questions .to witnesses, and an inference that might be drawn. from a question by appellees’ attorney, there is nothing in the record to indicate that the construction was not done with the highway department’s own forces. If this were not sufficient, a further answer is that there is no liability on the part of a contractor if he follows the designs and plans and specifications of the condemnor and complies with his contract with it if he did not do so in an improper or unskillful manner or was not guilty of negligence which caused the damage of which complaint is made. Burt v. Henderson, 152 Ark. 547, 238 S.W. 626; Roselotte v. Road Improvement Dist. No. 1 of Lawrence County, 141 Ark. 8, 215 S. W. 891; Wood v. Drainage Dist. No. 2 of Conway County, 110 Ark. 416, 161 S. W. 1057.

The contention of appellant raises questions as to the right of the lessee under an agricultural lease to recover severance damages for crops growing on that portion of the leased farm not physically taken.

It has long been recognized that a lessee can recover compensation for the taking and damage of his leasehold interest. See Little Rock & Fort Smith Ry. Co. v. Alister, 62 Ark. 1, 34 S. W. 82; McLaughlin v. City of Hope, 107 Ark. 442, 155 S. W. 910; Capitol Monument Co. v. State Capitol Grounds Comm., 220 Ark. 946, 251 S. W. 2d 473; Arkansas State Highway Comm. v. Fox, 230 Ark. 287, 322 S. W. 2d 81; Arkansas State Highway Comm. v. Cochran, 230 Ark. 881, 327 S. W. 2d 733; Arkansas State Highway Comm. v. Thomas, 231 Ark. 98, 328 S. W. 2d 367.

In two of these cases it is clearly demonstrated that the lessee’s recovery is not limited to his damages on the area actually taken. In McLaughlin v. City of Hope it was said that the owner of a mill on a millsite leased by him, having the right to use of a stream, was entitled to recover to the extent of the damage to his interest when the millsite was rendered worthless by a condemnation by discharge of sewage into the stream. In Arkansas State Highway Comm. v. Cochran, 230 Ark. 881, 327 S. W. 2d 733, the lessee, under a mineral lease for select material for highway construction, was awarded damages when the taking of two acres of a three-acre tract rendered the mining of the acre not taken impractical. This is in keeping with our constitutional provision requiring just compensation for the taking or damaging of property. It has consistently been held that the owner of property damaged but not physically taken has the same right to demand compensation as has the owner whose property has been occupied and taken from his possession. Arkansas State Highway Commn. v. Kincannon, 193 Ark. 450, 100 S. W. 2d 969. And this is so even though the injuries may be consequential. Campbell v. Arkansas State Highway Commn., 183 Ark. 780, 38 S. W. 2d 753. The contention of appellant that appellees could not recover for damages to the remaining lands resulting from the taking is, therefore, not well founded. It follows necessarily, that condemnor is liable for the damage which is the result of its taking and any damage by reason of acts of a contractor which are required in performing his contract are a part of the just compensation to which the condemnee is entitled.

It has also been recognized that, in fixing compen'sation to the owner of lands taken or damaged by a condemnor, it is proper to take into consideration the 'value of his crops destroyed or damaged. Ross v. Clark Comity, 185 Ark. 1, 45 S. W. 2d 31. See, also, 29A C. J. S. 734, Eminent Domain, § 173.

A lessee is an “owner” for the purposes of eminent domain cases. 27 Am. Jur. 2d, 21, Eminent Domain, § 250. There is no reason why his recovery should not include the same elements.

It appears that this court has never prescribed the measure of damages in cases such as this, but appellant did not question the measure submitted to the jury by objection to testimony or instructions. Although we do not reach the question for this reason, there are authorities supporting the position of appellees and the measure apparently applied — the difference between the value of the crop that would have been produced at maturity and the cost of production (with reduction for the value of the crop produced, as here directed). See Pieper v. City of Scottsbluff, 176 Neb. 561, 126 N. W. 2d 865; Daily v. United States, 90 F. Supp. 699; Board of Commissioners of Fairfield County v. Richardson, 122 S. C. 58, 114 S. E. 632.

Appellant bases its appeal entirely on the one objection made in the trial court — -that this is a tort action from which appellant is immune. Reliance is placed principally on the decisions in Arkansas State Highway Commn. v. Lasley, 239 Ark. 538, 390 S. W. 2d 443 and St. Francis Drainage District v. Austin, 227 Ark. 167, 296 S. W. 2d 668, apparently on the basis that any destruction of crops is a tort. These cases are easily distinguished from the present one. In the latter, the damage to the crops was caused by the drifting of poison used by a drainage district to kill willows growing on its right-of-way well after the taking. The distinction was pointed out by Mr. Justice Eobinson in the opinion itself — appellee’s crops were neither intentionally nor inevitably damaged, nor was the damage of a permanent nature. It was also pointed out that the rule was different where the damage was of a permanent nature. In the former case, the opinion clearly states that the damages to the landowner’s crops and his loss of cattle were caused by the negligent acts of appellant’s agents hnd employees in permitting the landowner’s cattle to ' escape.

There is no indication that any of appellees’ damage was anything other than that ordinarily and naturally resulting from the taking and use of the right-of-way. It is obvious that no irrigation canal or pasture fence crossing the right-of-way could remain intact either during or after construction of an interstate, controlled access highway. No suggestion is even made that this was a temporary construction condition, it being stipulated that no such condition would be permitted.

'Clearly, neither the pleadings nor the proof showed any attempt on the part of the appellees to recover for any tort. On the other hand, the damage to them was the direct result of the taking of the right-of-way for a proper public use.

The judgment is affirmed.

       While the lease recites a two-year term ending December 31, 1963, it describes three notes for rent at the rate of $3,300.00 per year, onei being due in each of the years 1962, 1963 and 1964 .


author: J. Fred Jones, Justice.

text:
    Leveon Smith v. State
    5235
    411 S. W. 2d 510
    Opinion delivered February 6, 1967
    [Rehearing denied March 13, 1967]

      W. B. Howard and Jack Segars, for appellant.

      Bruce Bemett, Attorney General; Richard B. Adkisson, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

This appeal is from a judgment of the Craighead County Circuit Court revoking the suspension of a penitentiary sentence previously imposed on the appellant.

On January 27, 1964, the appellant, Leveon Smith, was properly tried and found guilty by a jury in the 'Craighead County Circuit Court on two separate charges of burglary and grand larceny. The trial court postponed the pronouncement of final sentence upon condition of appellant’s good behavior in the future, and entered judgment, in the form of suspended sentences to the Arkansas penitentiary for a period of five years under authority of Ark. Stat. Ann. § 43-2324 (Repl. 1964).

On the 11th day of April, 1966, the prosecuting attorney filed information against the appellant on two counts of burglary and grand larceny and on one count of petit larceny, and also filed a petition for revocation of the suspension of sentences in the previous cases, alleging that appellant had violated the conditions of the suspension of sentence in that he had not been of good behavior, but had committed several acts of burglary and grand larceny since the rendition of the original judgments.

Apparently in anticipation of evidence the State might attempt to offer at the trial of appellant on the three new charges, as well as in support of its petition to revoke the suspension of sentences on the previous judgments, the appellant filed motions to quash and suppress a confession purportedly made by the appellant and meticulously set out and included in his motion, each and every item of testimony, as well as exhibits, !he anticipated the State would offer as evidence at the trial on the informations, as well as at the hearing on its petitions for revocation.

When the appellant’s case came on for jury trial on the three counts charged in the information, appellant’s counsel insisted that appellant’s motions be first disposed of. The jury was discharged and appellant’s motions to suppress and the State’s petition for revocation were taken up by the Court in Chambers under the following procedure as revealed by the record:

“MR. PEARSON: If the Court please, I am not sure what would be proper procedure in disposing of those motions. Mr. Howard suggested they be disposed of at this time before getting into the hearing on the revocation. It might require some duplication of evidence from witnesses. We might do that or wait until the evidence is offered or confession is offered and then take those up.
MR. HOWARD: If your honor please, while the motions are separate and nearly each one states a separate theory, taken together they challenge all the evidence by way of physical evidence we anticipate will be offered by the State in these petitions for revocation, and taken together they challenge the confession we anticipate the State will attempt to offer.
To save time we think the two petitions should be consolidated and we should proceed on the motions, because if the motions are granted, there will be no need. If they are not, so far as an duplication of evidence, I don’t believe it would be necessary to duplicate it. I think we could stipulate it would be the same. I don’t know of any intelligent way you can pass on these motions and the admissibility of evidence other than to take them up and dispose of them.
COURT: We will proceed with the motions as has been suggested.
MR. HOWARD: All witnesses subpoenaed by the defendant stand up and raise your right hand. ’ ’

Appellant’s attorney then proceeded to elicit from prospective State’s witnesses the evidence in detail he was seeking to suppress.

During two days testimony from police officers, numerous articles were identified as those missing from business places, residents, and offices that had been broken and entered in Jonesboro, and it was definitely established by witnesses on direct examination by appellant’s attorney before the judge of the circnit court that some of these articles had been pawned by the appellant and others found in and recovered from appellant’s automobile and his home. After appellant’s attorney had introduced into the record appellant’s detailed written confession that he had broken and entered all the places reported burglarized and had taken the objects identified and had destroyed and disposed of others, it was stipulated between the appellant’s attorney and the prosecuting attorney that if appellant’s motion to suppress the evidence should be overruled by the court, then the evidence introduced in support of the motions could be treated as if the State had introduced exactly the same evidence on its petition to revoke the suspension of sentence.

The fact that the burglaries and grand larcenies had been committed by appellant and that appellant freely admitted that he had committed them, does not seem to be seriously questioned in this case. The competency of the evidence for the purpose of the State’s petition to revoke is what is questioned by appellant in this case, and that brings us to the crux of appellant’s contention on his motions to suppress.

Appellant, in effect, says that if he had not been unlawfully arrested, neither the police officers, nor the court, nor anyone else would ever have known that it was he who had burglarized the houses, business places, and offices in Jonesboro, and that the court would never have known about money and goods he had stolen, pawned, hid in his home and carried in his automobile and on his person, and would never have known about his bad conduct in general if he had not confessed to the crimes, and if he had not directed the officers to where he had hidden the stolen goods and objects while under the unlawful arrest.

Appellant says that his constitutional rights were violated in the manner of his arrest and that the meat cleaver or corn knife he carried in his hip pocket, the stolen pipe lighter he carried on his person, the stolen g*un case and jewelry he carried in his automobile, the stolen radio he had in his home, the stolen shotgun he had pawned at a grocery store for ten dollars, as well as his voluntary confession that it was he who had committed the numerous burglaries where these objects were 'obtained were simply “fruits of a poison tree” as announced by the United States Supreme Court in the California case of Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, and that this evidence was incompetent and totally inadmissible as evidence of his bad behavior, on a petition to revoke the suspension of the final pronouncement of sentence on his previous guilty of felony 'judgment, bearing no taint.

There is a great deal of difference between the Wong Sun case and the case at bar, but we will not prolong this opinion by distinguishing the two except to point out,’ that the defendants in the Wong Sun case were not under a suspended sentence and brought into court on a motion to revoke a suspended sentence under the laws of Arkansas.

Appellant’s apprehension came about in this manner — about 11:00 one night officer Gammill of the ■Jonesboro police department received a complaint from a Mrs. Taylor that there was a prowler in her house at 330 Carson Street. Officer Gammill drove to the ad- . dress in a squad car, found no one in the house but proceeded to drive around in the neighborhood. Sometime ‘within fifteen minutes after his investigation at the house, and while still cruising around in the neighbor.hood near Mrs. Taylor’s house, officer Gammill saw the appellant in the street running south away from the direction of the Taylor house and about a block or a block and a half from the house. Officer Gammill overtook the '.appellant and after “conversing with him” told the appellant he was under arrest for investigation of burglary. He searched the appellant by “brushing him down” and found a meat cleaver or corn knife, with a blade ten inches long, in appellant’s hip pocket. He took appellant to the police station where appellant admitted numerous burglaries and thefts which resulted in the recovery of the stolen goods identified as those missing in recent burglaries, and resulted in the revocation of the suspension of the final judgment of conviction on the former felonies as above set out.

The suspension of pronouncement of sentence upon convictions rests in the sound discretion of the trial courts in this State. Ark. Stat. Ann. § 43-2324 (Eepl. ,1964), Suit v. State, 212 Ark. 584, 207 S. W. 2d 315, and the sufficiency of evidence for the revocation of such suspension also lies within the sound discretion of the trial court, Spears v. State, 194 Ark. 836, 109 S. W. 2d 926.

A so-called “suspended sentence” or “suspension 'of sentence” is in the nature of a privilege extended to a defendant upon condition and is awarded or withheld in the court’s sound discretion as to the worthiness and possibility of rehabilitation of the defendant and on conditions fixed by the court. A revocation of a suspension is in the nature of a revocation of a privilege previously extended, and the sufficiency of evidence as to whether or not the conditions upon which the suspension was granted have or have not been met or complied with by the defendant, also lies within the sound discretion of the trial court.

During the period of suspension of a penitentiary sentence on good behavior, the choice is simply left up <to the defendant as to whether he serves out his sentence in good behavior or in the penitentiary.

Appellant argues three points for reversal, which ■we now take up in order.

Point 1: “Appellant was entitled to a trial on the petition for revocation under the same evidentiary rules and constitutional guarantees that would obtain in a trial on the merits of guilt or innocence in any criminal case.”

Appellant cites Gerard v. State, 235 Ark. 1015, 363 S. W. 2d 916 in support of point No. 1.

In the Gerard case, the trial court revoked the suspended sentence in a summary proceeding and denied the defendant the right to testify.

In the case at bar, appellant’s own attorney elicited all the damaging evidence against the defendant in support of his motions to suppress it and the defendant did not offer to testify.

Officer Gammill testified that appellant was carrying a knife with a ten. inch blade and when asked what explanation the appellant gave for carrying the knife, the officer stated:

“He said his girl friend was in Marked Tree with another boy and he was waiting for him on Carson street, going to wait on Matthews and Carson, that was the route they would come.”

Appellant did not deny carrying the knife or making the statement nor did he offer to do so. He simply argues that officer Gammill told him he was under arrest before the knife was found in his hip pocket, and that the court could not consider this as bad behavior since his constitutional rights were violated in his arrest by officer Gammill.

:Ark. Stat. Ann. § 43-2331 (Supp. 1965) is the last pronouncement from the legislature on suspension of sentences and probation in Arkansas, and our own latest pronouncements on the subject are found in our decisions in Frankie Kinard v. City of Conway, 241 Ark. 255, and Burt v. State, 241 Ark. 798 where we held, as we now hold again, that the sufficiency of the evidence to sustain an order of revocation of a suspended sentence is a matter addressing itself to the sound discretion of the trial court.

Certainly the same quality or degree of evidence should not be required in the exercise of judicial discretion as is required for the proof of guilt beyond a reasonable doubt against presumption of innocence and we find no abuse of the Court’s discretion in this case.

Point 2: “The appellant’s arrest was illegal and in violation of his rights under the 4th amendment to the constitution of the United States of America.”

Appellant argues that his arrest was illegal because it was without reasonable or probable cause as required by amendment 4 of the United States constitution and without reasonable grounds for believing that he had committed a felony as required by Ark. Stat. Ann. § 43-403 (Eepl. 1964). This section of the Arkansas statutes is short and reads as follows:

“A peace officer may make arrest:
First. In obedience to a warrant of arrest delivered to him.
Second. Without a warrant, where a public offense is committed in his presence, or where he has reasonable grounds for believing that the person arrested has committed, a felony.”

In the examination of the arresting officer a fine line of distinction is drawn between “burglary” which is a felony and “house prowling” in trespass, which is a misdemeanor. . ..,

In determining what is “reasonable” and what is “probable” in an effort to determine what constitutes “reasonable or probable cause,” under amendment 4 of the U. S. constitution, and what constitutes “ reasonable grounds for believing,” under the State statutes, one must of necessity, depend to some extent, on time, place and circumstances.

There is no question but that the Jonesboro police were well aware of numerous unsolved burglaries in the City, -when officer Gammill was advised by Mrs. Taylor at 11:00 p.m. that a prowler was in her house. Officer Gammill was not unreasonable in believing Mrs. Taylor when she said there was a prowler in her home, and certainly officer Gammill would not have been reasonable in believing that the prowler was paying a social call or merely inspecting the contents of the house out of curiosity. It was not unreasonable for officer Gammill to believe that such prowler had entered the house with intent to commit a felony or larceny. Officer Gammill would have come nearer being unreasonable to have believed otherwise, and he was not duty bound to determine the exact nature or degree of the prowler’s intent before mailing up his own mind.

When a few minutes after the house entry was reported, officer Gammill observed the appellant, a grown man, running down the street away from the house that had been entered at 11:00 at night, he was not unreasonable in believing that the appellant was the one who had entered the house.

Applying the fine technicalities of the law m favor of the arrest, that appellant would have us apply against it, officer Gammill had a right to actually arrest the appellant because of a public offense being committed in the officer’s presence.

No ordinance is cited on walking or running down the streets of Jonesboro near midnight, but Ark. Stat. Ann. § 41-4521 (Repl. 1964) provides as follows:

“A person who carries a knife as a weapon, except when upon a journey or upon his own premises, shall be punished as provided by Act 96 * * *”

and Ark. Stat. Ann. § 41-4523 (Repl. 1964) provides as follows:

“If a person carries a knife with a blade three and a half inches (3% in.) long or longer, this fact shall be prima facie proof that the knife is carried as a weapon. ’ ’

In this case the appellant was not only carrying a knife in the presence of the officer, he was running with it. The blade of the knife was not less than three and a half inches long, it was ten inches long.

Having reached the conclusion that appellant’s arrest was legal, under all the attending circumstances of this case, and having reaffirmed our previous holdings that the sufficiency of the evidence for the revocation of suspended sentences is addressed to the sound discretions of the trial court, and finding no abuse of that .'discretion in the case before us, we find it unnecessary to discuss appellant’s point No. 3.

The judgment of the trial court is affirmed.

Fogleman, J. not participating.