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.