Williams v. State , 237 Ark. 569 ( 1964 )

Jim Johnson, Associate Justice

(dissenting). I do not agree with the majority opinion. In my view the majority has, this day effectively emasculated Act 243 of 1955 [Ark. Stat. Ann. § 43-2021 (Supp. 1963)].

From the time of the adoption of the Civil Code until the year 1955, the applicable law on invoking the “Rule” to exclude witnesses from the court room in criminal cases was found in § 658 of the Civil Code [Ark. Stat. Ann. § 28-702 (Repl. 1962)], which reads as follows :

“If cither party requires it, the judge may exclude from the courtroom any witness of the adverse party, not at the time under examination, so that he may not hear the testimony of the other witness.” [Emphasis ours.] ■ Under § 658 of the Civil Code, this court held on numerous occasions that the matter of putting any witness under the “Rule” addressed itself to the sound discretion of the trial court. These decisions were sound, in that the statute in question employed the word “may”, and certainly the employment of “may” clearly left the matter to the sound discretion of the trial judge. Under the cited section of the Civil Code, this court also held that it was not an abuse of discretion to refuse to place officers of the law under the “Rule”. Again, because of the peculiar terminology of the statute in'question, those decisions were sound.

However, in 1955, with the enactment of Act 243, the Legislature radically changed the law with reference to the exclusion of witnesses under the “Rule” in criminal eases. Section 1 of that Act reads as follows:

“If the accused or his attorney requests it, the judge shall exclude from the court room any witness, including lmt not limited to the officers of the court, officers of the km and experts not at the time under examination, so that they may not hear the testimony of other witnesses. [Emphasis ours.]

By the use of the word “shall” in the quoted statute, the Legislature unmistakably declared that the matter of whether witnesses would or would not be excluded from the court room no longer was left to the discretion of the trial court, but that upon demand of the defendant or his counsel, such exclusion became mandatory.

At the beginning of the trial of this case, the appellant sought to suppress certain evidence on the grounds (a) that some of the evidence was obtained by illegal search and seizure, and (b) that certain confessions had been obtained in violation of the defendants’ constitutional rights. A lengthy hearing was held on this motion, and at the beginning of this hearing the appellants unequivocally demanded that Sheriff Minton be excluded from the hearing. They duly saved their exceptions to the court’s refusal to honor their demand. In the course of that hearing there was testimony from a number of witnesses, including the testimony of some of the appellants. Their testimony was concerned with the circumstances under which certain searches were conducted and seizures made, as well as the circumstances under which certain alleged confessions were obtained. While the State called no witnesses in this hearing, a large part of the State’s case in chief, as well as that of the defendants, was concerned with whether any evidence had been obtained as the result of illegal searches and seizures, or any' confession obtained by compulsion. Thus, the sheriff, who was to be a principal State witness, was enabled to learn in great detail the contentions of the defendants with reference to those two vital issues.

The basic error in refusing to exclude Sheriff Min-ton and allowing him to hear the testimony in question is because it was in direct violation of Act 243 of 1955. This Act was undoubtedly passed to prevent perjury and, more importantly, the opportunity to commit perjury. The policy of the law is to remove the opportunity for perjury and thereby to completely eliminate any question as to whether any witness altered his testimony to meet that of any other witness. There is no satisfactory way to, determine what any particular individual may do when armed with knowledge of what other witnesses say. The primary purpose of the “Rule” is to prevent collusive testimony and to elicit the truth from each witness by preventing his being influenced by the testimony of others.

It is not the province of this court or of the trial court to determine questions of policy upon which the Legislature has spoken in such unmistakable terms when there is a valid ground for the exercise of legislative power. This court has not attempted to say that the statute in question is unconstitutional. Obviously, such is not the case. It is impossible to say whether the trial court’s action in allowing the officer of the law to hear the testimony did the appellants any actual damage. However, a substantial right of the appellants was violated. It will not do to speculate as to whether they were or were not prejudiced thereby. If it be said that the sheriff in this case was an honorable man who would not stoop to perjury, my reply is that given by this court on several previous occasions: The answer is, “twill be recorded for a precedent and many an error by the same example will rush into the state. It cannot be.”

The efficacy of the “Rule” as an instrumentality designed to ferret out truth was first demonstrated in the Apocryphal Scriptures in the story of Susanna and the Elders, where Daniel was impelled by the Lord to separate the lustful elders as they testified in pursuit of their iniquitous desire to besmirch the honor and take the life of a virtuous woman. The result was the complete exoneration of Susanna. From that day until this, the “Rule” has been one of the brightest stars in the crown of justice. I could never vote for its abrogation. For the reason stated, I respectfully dissent.