Page:Ricarte v. State.pdf/4

Rh covered by means of a ski mask, a jogging suit, gloves, and shoes. Brannen testified that Ricarte did not want his skin color to be seen, because he is an Indian. The three men, who were armed, handcuffed Perry and his wife and son. Brannen and Clark explained the robbers' plan to remain at the Perry home all night and rob the jewelry store early the next morning. That plan was successfully carried out; both the Perry home and the store were robbed. The total take had a retail value of about a million dollars, with the wholesale value being about half that. Ricarte actively participated but maintained his anonymity by never speaking except in a whisper inaudible to the Perrys. One of the three, Brannen, was eventually arrested after prolonged and painstaking police work. Brannen joined the Federal Witness Protection Program, gave the FBI information about the robbery, and testified against Ricarte at the trial.

[1] On July 12, 1985, three days before the trial began, Ricarte and Susan Schneider were married in Arkansas. When the State called Mrs. Ricarte as a witness, counsel objected on the ground that under Arkansas law the State cannot call one spouse as a witness against the other. The State relied on Uniform Evidence Rule 504(b), by which only confidential communications between spouses are privileged. The defense insisted that the Uniform Rules of Evidence were not validly adopted by the legislature, because at the time of their adoption the legislature was unlawfully in session in January, 1976, almost a year after the 1975 regular session had ended. That practice of continuing the legislature in session after its regular 60-day session has ended is not permitted by the Arkansas Constitution. Wells v. Riviere, 269 Ark. 156, 599 S.W.2d 375 (1980). The trial judge overruled the objection on the ground that a marriage three days before trial should not create a privilege.

[2, 3] The objection should have been sustained. The Uniform Rules of Evidence were adopted at an invalid session of the legislature. Under the Wells case they did not become law. That being true, our earlier statute, Act 14 of 1943, was not affected by the repealing clause in the Uniform Rules. The 1943 statute provides that in a criminal case one spouse cannot be called by the opposite party as a witness against the other spouse. The statute makes no exception for a marriage that was or may have been entered into for the purpose of shielding one spouse from the