text:
    Wilburn Anthony HENDERSON v. STATE of Arkansas
    CR 82-107
    652 S.W.2d 26
    Supreme Court of Arkansas
    Opinion delivered June 13, 1983

      Kearney Law Offices, by: Jesse L. Kearney, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

A jury convicted appellant, Wilburn Anthony Henderson, of capital felony murder, and he was sentenced to death by electrocution. On appeal from that conviction we affirm.

The victim was murdered at approximately 2:00 p.m. on November 26, 1980, while she was working in her family owned furniture store in Fort Smith, Arkansas. The autopsy revealed that she was shot once in the head with a .22 caliber pistol and died instantly. The police arrived at the crime scene at about 2:15 p.m. and found the victim lying face down behind the counter. The cash register was open, and at least $41 was missing.

During the police investigation of the crime scene, one of the detectives found a piece of paper on the floor about six feet from the victim’s body. The victim’s daughter testified that it had not been there when she was in the store at 1:40 p.m. that afternoon. It was this piece of paper which led to the development of appellant as a suspect in the case. On the paper was a drawing of a floor plan, two phone numbers, an address, and the name of a real estate agent. When contacted by the police, the agent recognized the drawing as the floor plan of a cabin he was trying to rent. It was then discovered that appellant had looked at the cabin, and had had an appointment with the agent to talk about renting it at 4:30 p.m. the day of the crime; appellant failed to keep this appointment. Appellant was eventually traced to Houston, Texas, where he was picked up by the Houston police. Appellant gave a statement in Houston to the Fort Smith police in which he admitted that he was in the store at the time of the murder, but stated that an acquaintance killed the victim. The acquaintance was questioned, released, and later testified at trial.

There was additional evidence linking appellant to the crime. The investigation revealed that appellant had redeemed a pawned .22 caliber pistol on November 24 but had pawned the pistol again on November 29. A female acquaintance of appellant testified that appellant acted peculiarly when a television report gave a description of the subject sought in the murder. She also testified that appellant told her that the Fort Smith police were looking for him regarding a murder and that if the police asked about him, to tell them he had telephoned from Kansas City. In addition, she was to tell anyone that asked that he still had his moustache, even though he had shaved it off. It was also established that when appellant left for Houston, he abandoned the van he was driving on the day of the murder.

After viewing the evidence in the light most favorable to the State, we conclude that there was substantial evidence to support the jury’s finding of guilt.

Appellant argues that our capital murder statute is unconstitutionally vague. We reject this argument. We have upheld the constitutionality of this statute on numerous occasions. In this regard, see Simpson v. State, 278 Ark. 334, 645 S.W.2d 688 (1983); Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982); Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).

Appellant alleges that the capital murder sentencing statutes are unconstitutionally vague for three reasons: First because the aggravating circumstances of Ark. Stat. Ann. § 41-1303 (Repl. 1977) are too closely related to the elements of capital felony murder as set out in Ark. Stat. Ann. § 41-1501 (Repl. 1977); this contention was answered in Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981) where we held that the aggravating circumstances are not an element of capital murder. Secondly, appellant points to the fact that there is no specific definition of “mitigating circumstance” in Ark. Stat. Ann. § 41-1304 (Repl. 1977); however, we have held that the fact that the jury is not limited to specifically enumerated mitigating factors accrues to the benefit of the defendant, because it gives the jury a greater opportunity to extend leniency to him. Millerv. State, 269 Ark. 341, 605 S.W.2d 430 (1980). Thirdly, appellant argues that our sentencing statutes are unconstitutional because there is no accurate comparison of death penalty cases, since not all such cases are appealed and those that are do not always contain complete records; in answering this contention we note that it is highly unlikely that any death case will not be appealed; the constitutionality of our appellate process in death penalty cases was upheld in Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977); appellant’s allegation that the records in death cases are inadequate has no merit.

Appellant argues that the trial court erred in excusing for cause a juror who stated that she could not under any circumstances impose the death penalty, thereby allowing a “death qualified” jury to determine his guilt or innocence. More specifically, appellant argues that since Ark. 'Stat. Ann. § 41-1302 (Repl. 1977) does not require that a jury be composed only of members who can recommend the death penalty, persons who cannot impose the death penalty should be allowed to sit on the jury. However, the statute contemplates that persons on the jury will be capable of imposing the death penalty. It is not error for the court to strike for cause persons who cannot carry out the law. See Haynes v. State, 270 Ark. 685, 606 S.W.2d 563 (1980). Appellant’s contention that a death qualified jury is more conviction prone was rejected in Lasley v. State, 274 Ark. 352, 625 S.W.2d 466 (1981), and appellant’s argument concerning a bifurcated trial, with one jury for determining guilt or innocence and another one for sentencing, was rejected in Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982).

Appellant also alleges that the trial court erred in not granting his motion for expert witnesses to testify at a hearing on the issue of a death qualified jury. The court satisfied .appellant’s request by allowing appellant to introduce several documentary studies on this issue:

The Court: We will resume the hearing on Wilburn Anthony Henderson. On Defendant’s Motion for Witness Fee, Expert Witness Concerning Exclusion of Veniremen, defendant was allowed to introduce several studies or papers. Does that satisfy your request for a witness in this matter, Mr. Settle?
Mr. Settle: [Defense attorney]
The court has accepted these documents into evidence? The Court: Yes.
Mr. Settle: And accepted it as evidence to the other motions I filed?
The Court: Yes, sir.
Mr. Settle: All right, sir.
The Court: That motion will be satisfied.

Appellant made no objection to this ruling, and under these circumstances, this point has not been properly preserved for appeal.

Appellant argues that the trial court erred in refusing to suppress the statement he gave to a Fort Smith detective while incarcerated in Houston. This argument is without merit. Although an in-custody statement is presumed to be involuntary, in this case the State has met its burden of proving that appellant’s statement was made voluntarily, without hope of reward or fear of punishment. Watson v. State, 255 Ark. 631, 501 S.W.2d 609 (1973). At the pretrial hearing to determine voluntariness, a verbatim transcript of appellant’s recorded statement was introduced into evidence. The transcript reflects that appellant was asked if he was treated fairly, to which he responded, “Yes, sir,” and that he was given an opportunity to say anything he desired concerning the voluntariness of his statement at the end of the interview. He responded that he had nothing more to say. The detective who took the statement testified that he advised appellant of his Miranda rights, that appellant agreed to make a statement, and that no promises, threats, or coercion were used to obtain the statement. At trial appellant testified that the statement was involuntary because he was frightened since the Houston police officer, who took him in, told him if he attempted to escape he would “blow him away.” However, that officer did not question him and was not present when he gave his statement. Appellant admitted that the interrogating officers did not abuse him in any way. Therefore, even in light of appellant’s testimony at trial, the trial court’s finding of voluntariness will not be disturbed on appeal.

Appellant next argues that the trial court erred in admitting a photograph of the victim taken in the autopsy room. The photograph depicted the area of the wound and it enabled the jury to better understand the testimony of the state medical examiner. The admissibility of photographs is within the sound discretion of the trial court, and will not be set aside absent a manifest abuse of discretion. Roleson v. State, 277 Ark. 148, 640 S.W.2d 113 (1982). Here, we cannot say that there was an abuse of discretion. Appellant argues that the admission in evidence of the autopsy report was error; the admission in evidence of an autopsy report is permitted by Ark. Stat. Ann. § 42-1220 (Supp. 1981).

Appellant also alleges that prejudicial error occurred when he had to object to certain photographs proffered by the State. We cannot agree. The discussions concerning the photographs occurred at the bench. We find no prejudicial error in this regard.

Appellant contends that the trial court erred in refusing to sequester the jury during his trial. To support this argument, appellant points to the fact that his first trial ended in a mistrial because of publicity and the fact that there was television and newspaper coverage surrounding his second trial. The decision of whether or not to sequester the jury is left to the discretion of the trial court. Ark. Stat. Ann. § 43-2121 (Repl. 1977). The trial court’s decision will not be disturbed in the absence of a clear showing of prejudice. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). Here, appellant has failed to demonstrate the necessary showing of prejudice. Each juror was thoroughly questioned about media influence, and each one selected was admonished to refrain from discussing the case, reading about it in the newspaper, or listening to radio or television reports. Appellant is not entitled to a jury completely ignorant of the crime. Anderson v. State, 278 Ark. 171, 644 S. W.2d 278 (1983). It is sufficient if the juror can lay aside his opinions and render a verdict based on the evidence presented in court. Kellensworth v. State, 276 Ark. 127, 633 S.W.2d 21 (1982).

Appellant argues that the trial court erred in instructing the jury as to the lesser included offense of second degree murder, AMCI 1503. He cites Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980) for the proposition that the State must choose either the capital murder instruction or the second degree instruction, but not both. Such reliance is misplaced. This court has held that the jury should have the opportunity to consider lesser included offenses where the evidence warrants, even if the defendant objects. Caton and Headley v. State, 252 Ark. 420, 479 S. W.2d 537 (1972). In any event, appellant was clearly not prejudiced by the submission of the second degree murder instruction since the jury convicted him of the greater offense of capital felony murder.

Appellant also alleges that it was error to give AMCI 1501-A, the Capital Murder — Associated Felony instruction, because it was cumulative of AMCI 1501, the Capital Murder instruction. This argument is without merit. The “note on use” following 1501-A explains:

A charge of capital murder committed in the course of one of the felonies specified in Ark. Stat. Ann. § 41-1501 (a) (Repl. 1977) will require proof of that felony. This instruction is designed for use in defining the felony if requested by either party or if the court feels it would be helpful to the jury.

Here, appellant was charged with murder committed during the course of a robbery; therefore, it was not error for AMCI 1501-A defining robbery to be given.

Appellant argues that the trial court erred in allowing the State to ask appellant certain allegedly irrelevant and prejudicial questions concerning a previous marriage and other names he had used in the past. Appellant alleges that he was prejudiced by the State inquiring into these “morally stigmatizing subjects,” but we cannot say from an examination of the record that these questions, standing alone, constituted prejudicial error.

We find no evidence that the j ury’s verdict was based on either passion or prejudice, nor do we find the imposition of the death penalty in this case to be arbitrary, capricious, or wanton. In our comparative review of death sentences, we find the sentence not excessive. See Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981).

In the sentencing phase of the trial the jury received as evidence of aggravating circumstances four prior felony convictions in California for the felony crimes of rape, assault with a deadly weapon, assault by means of force likely to produce great bodily injury, and robbery. This evidence supported the jury’s finding that appellant had previously committed another felony, an element of which was the use of threat of violence to another person. The jury found no mitigating circumstances. The jury’s finding that the aggravating circumstances outweighed, beyond a reasonable doubt, any mitigating circumstances is supported by the evidence.

We have examined all objections pursuant to Rule 11 (f), Rules of the Supreme Court, Ark. Stat. Ann., Vol. 3A (Repl. 1977) and find no error. See Earl v. State, supra.

Affirmed.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Ernest MAXWELL, Jr. v. STATE of Arkansas
    CR 83-10
    652 S.W.2d 31
    Supreme Court of Arkansas
    Opinion delivered June 13, 1983

      Mobley ir Smith, by: William F. Smith, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, Ernest Maxwell, Jr., was charged with first-degree murder in the death of Carol Conn, was found guilty in a two-stage trial, and was sentenced as an habitual offender to life imprisonment. We find it necessary to order a new trial, because the prosecuting attorney brought inadmissible and prejudicial matter to the jury’s attention and because the expert witness Monroe was permitted to state an inadmissible opinion.

On the morning of June 25, 1981, the badly battered body of Carol Conn, 20, clothed in a T-shirt, blue jeans, and tennis shoes, was found near the Plumerville exit from Interstate 40, in Conway County. The clothed body was taken to the state medical examiner for an autopsy. That afternoon the police questioned Maxwell, 43, with whom Carol had been living for about four weeks in his home near Atkins, in Pope County. Maxwell said then, and testified at the trial, that he last saw Carol at his home at about five o’clock the preceding evening. He went to sleep then. When he awoke at about eight, Carol was gone. He went into Atkins at about eleven to ask his brother if he had seen Carol; the next morning he asked about her elsewhere. He told the officers that during the four weeks he and Carol had been living together he had hit her only once, about two weeks earlier and with his open hand.

The state medical examiner, Dr. Malak, performed the autopsy, which at his request was witnessed by Berwin Monroe, a state police officer having extensive training and experience in criminal investigation. Dr. Malak testified, with the support of photographs he had taken, that Carol’s body was bruised from head to foot, front and back. Some of the bruises had been inflicted about ten days before her death, others about three days before death, and others still later. Her skull had been fractured, but the actual cause of death was a heavy blow to the area of the umbilicus (navel), which burst her intestines and caused her death from internal bleeding within not more than ten minutes. Dr. Malak was of the opinion that Carol had been nude when she was killed; some recent wounds had bled, but there was no blood on her clothing, which must have been put on her body after death. The sufficiency of the evidence is not questioned.

Near the end of the trial, Maxwell took the witness stand and admitted on direct examination that he had been convicted of rape and that he had also been convicted of having escaped from jail and having stolen a car during the escape. The prosecuting attorney began his cross-examination with this question:

Mr. Streett: Q. Mr. Maxwell, I believe you acknowledged to Mr. Mobley [defense counsel] that in 1968 you pled guilty and were convicted of the raping of an eleven-year-old girl, and received a thirty-year — [Mr. Mobley interrupts with his objection.]

After a brief colloquy not heard by the j ury the court denied a defense motion for a mistrial but admonished the jury not to consider Mr. Streett’s reference to the girl’s age.

We cannot say that in the circumstances the admonition cured the possibility of prejudice. The prosecutor’s action must have been deliberate, for he could not reasonably have believed that Maxwell had admitted the inadmissible and prejudicial fact that he had raped an eleven-year-old child. In fact, the prosecutor did not argue during the colloquy that the question was proper, nor does the State make such a contention in its brief. We liken the situation to that in Clark v. State, 244 Ark. 772, 427 S.W.2d 172 (1968), where the prosecutor in the jury’s presence went through the pretense of attempting to call the defendant’s wife as a witness, knowing that she could not testify against him. We reversed the conviction because, while the crime was described as heinous and revolting, the offer to call the wife “exceeded the bounds of fairness, so essential to an unprejudiced trial.” We cannot establish a precedent that a deliberately unfair tactic such as the one before us can be made harmless by anything less than a reprimand in the presence of the jury or by the granting of a mistrial.

There is another error that must be avoided upon a retrial. Berwin Monroe qualified as an expert witness in crime scene investigation and in the scientific examination of minute physical evidence. The State’s theory was that Maxwell killed Carol in his home, that she was nude at the time of her death, and that Maxwell later put the clothing on her body, disposed of the body at the Plumerville exit, and cleaned up the room with a wet string-type mop.

Monroe gave convincing testimony about the many particles of steel wool, blue paint, orange-red paint, fish-like scales, flakes of glitter, sand, insect-egg material, and other microscopic matter that he found on the surface of Carol’s body, on the inside of the clothing on the body, on the soles of the tennis shoes on the body, on her feet, and on exhibits recovered from the house: the mop, two pillow cases, and a pair of cut-off jeans that had belonged to Carol. Monroe was properly permitted to explain to the jury why the presence of the particles on the bottom of Carol’s feet and on the soles of the tennis showes showed that she could not have walked out of the house, either barefooted or wearing the tennis shoes, and have walked for even a slight distance on grass, concrete, or asphalt without disturbing the particles on her feet and on the shoes. No complaint is made about that testimony.

The court, however, also permitted Monroe to testify that in his opinion Carol had met her death in the Maxwell house. Neither he nor Dr. Malak was able to say just what instrument if any was used in the murder. We can find in Monroe’s testimony no scientific basis beyond the comprehension of the jury for his opinion that her death occurred in the house. His conclusion seems to have been based solely on the proof that she did not walk out on her own feet and that she died within ten minutes. Under Uniform Evidence Rule 702, Ark. Stat. Ann. § 28-1001 (Repl. 1979), the drawing of such a simple inference should not have been presented to the jury gift-wrapped with the fabric of expert scientific opinion. As the Advisory Committee’s Note to Rule 702 puts the matter:

Whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier. “There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.” Ladd, Expert Testimony, 5 Vand. L. Rev. 414, 418 (1952).

There is no merit in the appellant’s third argument, that the prosecutor should not have been permitted to refer to Maxwell, in the closing argument, as a rapist, thief, and escapee. The exact words used were not reported, but the prosecutor did state, in answering defense counsel’s request for a mistrial, that he had used the terms only in arguing Maxwell’s credibility as compared to that of the police witnesses. In that context the argument was not improper.

Reversed and remanded for a new trial.

Adkisson, C.J., concurs.


author: Frank Holt, Justice.

text:
    TERMINAL TRUCK BROKERS v. MEMPHIS TRUCK & TRAILER, INC.
    83-11
    652 S.W.2d 34
    Supreme Court of Arkansas
    Opinion delivered June 13, 1983

      Macom, Moorhead, Green ir Henry, by: William M. Moorhead, for appellant.
    No brief filed by appellee.
   Frank Holt, Justice.

The appellee secured a default judgment against Larry Fletcher. In an effort to collect the judgment, it had a writ of garnishment issued against the appellant. The appellant did not respond, and a default judgment was entered against it. In a timely manner, the appellant filed a motion to set aside the default judgment. The trial court held that the objections by appellant to the form of the writ of garnishment were well taken; however, by having answered a previous writ in this same case, the appellant garnishee knew what was required of it. The motion to set aside the default judgment against appellant was denied and hence this appeal.

The appellant contends the default judgment should have been set aside because it established a meritorious defense and because the writ of garnishment was voidable for lack of compliance with the requirements of ARCP Rule 4 (b). We agree.

The parties have stipulated that, from the time the writ of garnishment was issued until the date of the filing of the motion to set aside the default judgment, the appellant was not indebted to Larry Fletcher nor did it have in its possession any property or money belonging to him. This is sufficient to demonstrate the existence of a meritorious defense to an action for garnishment. Coward v. Barnes, 232 Ark. 177, 334 S.W.2d 894, 82 A.L.R.2d 854 (1960); Dalhoff Construction Co. v. Adams, 76 Ark. 98, 88 S.W. 1134 (1905); Ark. Stat. Ann. § 31-305 (Repl. 1962).

It further appears that the writ of garnishment here fell short of the requirements of ARCP Rule 4 (b) in substantially the same manner as the summons which we held defective in Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982). Here, as in Tucker, the writ was not directed to the appellant but was directed to the sheriff; it did not direct the appellant to file a pleading and defend; and it did not state that any default judgment would be for the relief demanded, which was the amount owed to the appellee here by Larry Fletcher. The writ in the instant case also was defective in that it was not under the seal of the court, as required by ARCP Rule 4 (b). We have held that a writ of garnishment must meet the requirements applicable to summonses in civil cases. DeSoto, Inc. v. Crow, 257 Ark. 882, 520 S.W.2d 307 (1975). Actual knowledge of a proceeding does not validate a default judgment where there was, as here, a defective process. Tucker v. Johnson, supra. The default judgment should have been set aside.

Reversed and remanded.


author: Darrell Hickman, Justice.

text:
    Jerry ELLIS v. STATE of Arkansas
    CR 83-26
    652 S.W.2d 35
    Supreme Court of Arkansas
    Opinion delivered June 13, 1983

      Marion A. Humphrey, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

The only question before us is whether there is substantial evidence to support Jerry Ellis’ convictions for kidnapping and aggravated robbery. We find that there is and affirm the judgment.

We view the evidence in the light most favorable to the State. Late Saturday night, November 21, 1981, Harold Austin left a nightclub in Pine Bluff and was walking along a highway. A white Pontiac with two men and a woman stopped and insisted Austin get in the car. Austin rode in the back seat with a man he later identified as Jerry Ellis, the appellant. Austin testified that he tried to get out of the car several times but that his abductors refused to let him and at one point the man in the front seat produced what Austin described as a sawed-off shotgun.

They went to a gas station in Little Rock where Austin’s abductors ordered him to charge gasoline, three quarts of oil, and an air filter on his VISA credit card. Austin was then taken to an isolated area in south Little Rock. Austin was let out of the car and the man in the front seat, later identified as Larry Wright, ordered Austin to lie face down on the road and, with a gun to his head, Austin was robbed of his money and credit cards. His abductors told him to get up and run, which he did.

On November 23, 1981, Ellis and two other men were arrested at Dillard’s Department Store in Little Rock after trying to make purchases with Austin’s VISA. They were in possession of a white Pontiac which was searched. The search produced three quarts of oil, a .22 caliber rifle and some items taken from a Holiday Inn.

Ellis gave the police a statement which said that he saw Austin hitchhiking and that he accepted the offer of a ride and that Austin told them he wanted to go to Little Rock. Ellis said that at the time there was a .22 caliber rifle hidden in the front of the car which did not belong to him. Ellis said that later Austin was ordered out of the car at an isolated spot and robbed.

At Ellis’ trial, testimony established that Ellis had checked into a Pine Bluff Holiday Inn on November 22nd, using Harold Austin’s VISA. The jury convicted Ellis on both counts and sentenced him to five years for kidnapping and thirty years for aggravated robbery. The sentences were set to be served consecutively.

On appeal Ellis argues that there was no evidence presented at trial that Austin was forced to get in the car at gunpoint. It is not necessary that a victim be captured or held at gunpoint for the offense of kidnapping to be established under Ark. Stat. Ann. § 41-1702 (Repl. 1977). To prove kidnapping the State must only prove that the accused restrained the victim so as to interfere substantially with the victim’s liberty, without the victim’s consent, for a specific purpose outlined by the statute. Austin testified that he entered the car involuntarily and was restrained from leaving it.

Austin testified that after being forced into the car and being shown a weapon he was ordered to buy gas. He testified that he was taken to a rural area, forced at gunpoint to lie face down, and while Wright was holding a gun and Ellis was sitting on his leg, he was robbed. Ellis also admitted that Austin had been robbed, although he claimed that he had nothing to do with it.

On appeal we review the evidence in a light most favorable to the appellee and if there is substantial evidence to support the conviction we will affirm. Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981). Evidence is substantial if it is of sufficient force and character to compel a conclusion of reasonable and material certainty. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). In this case the jury had the choice of believing either Ellis or Austin as to the circumstances surrounding Austin’s presence in the car. The jury obviously believed Austin and we are bound by their judgment as to the credibility of the witnesses. Jones v. State, supra; Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). We find manifest substantial evidence to support Ellis’ convictions.

Ellis’ final argument on appeal, that his motion for a directed verdict should have been granted, also questions the sufficiency of the evidence which we have answered.

Affirmed.


author: John I. Purtle, Justice.

text:
    ARKANSAS NURSING HOME, INC., RILEY’S OAKHILL MANOR, INC., Charles STEWART et al, CRESTPARK, INC., and SAGECO, INC. v. Honorable Judith ROGERS, Chancellor, and STATE of Arkansas, ex rel Steve CLARK, Attorney General
    83-35
    652 S.W.2d 15
    Supreme Court of Arkansas
    Opinion delivered June 13, 1983

      Daggett, Daggett & Van Dover, by; Jimason J. Daggett; House, Holmes é Jewell, P.A., by: Charles R. Nestrud and Mitchell, Williams, Selig, Jackson ér Tucker, by: Byron Freeland, for petitioners.

      Steve Clark, Atty. Gen., by: Mary B. Stallcup and Thomas Gay, Asst. Attys. Gen., for respondents.
   John I. Purtle, Justice.

Petitioners filed an original action in this court for a writ of prohibition against the respondent, Pulaski County Chancery Court (Third Division), praying that the respondent be prohibited from hearing and determining consolidated cases against petitioners. The petition is denied.

Petitioners were named defendants in an action filed in the Pulaski County Chancery Court by the Attorney General of the State of Arkansas, pursuant to the Consumer Protection Act. Ark. Stat. Ann. § 70-904 (Repl. 1979). The complaint sought to enjoin the petitioners from collecting certain charges from nursing home patients, to recover for past charges to patients, and to redress any unjust enrichment. After the complaints were filed the matter of an injunction was rendered moot but the chancellor refused to dismiss the complaints as to the other charges. The complaints have not been set for trial.

The object of the writ of prohibition is to prevent an inferior court from proceeding in a matter which is entirely without its jurisdiction. Duncan v. Kirby, Judge, 228 Ark. 917, 311 S.W.2d 157 (1958). Prohibition may also issue when an appeal is an inadequate remedy. Norton v. Hutchins, Chancellor, 196 Ark. 856, 120 S.W.2d 358 (1938). A writ of prohibition will not issue to prevent an inferior court from erroneously exercising its jurisdiction. Bassett v. Bourland, 175 Ark. 271, 299 S.W. 13 (1927). Prohibition may not be used as a substitute for appeal. Nor can it be used as a remedy to force transfer between law and equity courts. Butkiewicz v. Williams, Chancellor, 229 Ark. 556, 317 S.W.2d 15 (1958).

Petitioners rely upon the case of Curry, County Judge v. Dawson, Chancellor, 238 Ark. 310, 379 S.W.2d 287 (1964) to support their petition. We do not think Curry supports the present petition because there the court stated the rule that an election contest may not be heard by a court of chancery. This holding simply does not apply to the case before us.

Certainly the chancery court had jurisdiction to hear a motion to transfer to law but according to the record no such motion has been made. Therefore, the petition for a writ of prohibition must be denied.

Writ denied.

Hays, J., not participating.


author: Robert H. Dudley, Justice. Steele Hays, Justice, dissenting.

text:
    Mark Christian HENDERSON v. STATE of Arkansas
    CR 82-155
    652 S.W.2d 16
    Supreme Court of Arkansas
    Opinion delivered June 13, 1983

      Philip M. Clay and James C. Graves, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Mark Christian Henderson, the appellant, was convicted of the January 30, 1982, capital felony murders of Steve Francis and Diane Francis in Arkadelphia. He was sentenced to life imprisonment without parole. We reverse and remand for a new trial. Jurisdiction in is this Court pursuant to Rule 29 (1) (b).

We first address appellant’s meritorious argument that the trial court erroneously limited cross-examination of the accomplice.

Two people were murdered during the course of a robbery. The appellant, Mark Henderson, was charged with both capital felony murders. He was subjected to the penalties of death or life imprisonment without parole. Ark. Stat. Ann. § 41-1501 (Repl. 1977). In contrast, Jeffrey A. Brown, an admitted accomplice, was allowed to plead guilty to murder in the first degree which carries a penalty of not less than ten nor more than forty years, or life with the possibility of parole. Ark. Stat. Ann. §§ 41-901 and 41-1502 (Supp. 1981). The admitted accomplice, who had been allowed to plead guilty to the lesser charge, took the stand during the State’s case-in-chief and testified that the appellant was the one who actually murdered the victims. The defense attorney, in cross-examining the accomplice, asked, “What kind of a deal are you getting for yourself, Mr. Brown?” The prosecuting attorney objected and the court sustained the objection.

The ruling was erroneous. We have consistently taken the view that full cross-examination should be allowed in order to show bias. Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981). This is especially true in the case of an accomplice since his testimony is the direct evidentiary link between the defendant and the crime. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1981). In Klimas v. State, 259 Ark. 301, 305-06, 534 S.W.2d 202, 205 (1976), we stated:

It is generally permissible for a defendant to show by cross-examination anything bearing on the possible bias of the testimony of a material witness. Bethel v. State, 162 Ark. 76,257 S.W. 740; Ringer v. State, 74 Ark. 262, 85 S.W. 410; Annot. 62 A.L.R.2d 611 (1958). This rule applies to testimony given under expectation or hope of immunity or leniency or under the coercive effect of his detention by authorities. Stone v. State, [162 Ark. 154, 258 S.W. 116]; Boyd v. State, [215 Ark. 156, 219 S.W.2d 623]. See also Campbell v. State, 169 Ark. 286, 273 S.W. 1035; Alford v. U.S., [282 U.S. 687(1930)]. The test is the expectation of the witness and not the actuality of a promise. State v. Little, [87 Ariz. 295, 350 P.2d 756]; Spaeth v. United States, 232 F.2d 776, 62 A.L.R.2d 606 (6 Cir., 1956).
* # *
Denial of cross-examination to show the possible bias or prejudice of a witness may constitute constitutional error of the first magnitude as violating the Sixth Amendment right of confrontation. Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L.Ed.2d 347 (1974).

Indeed, the State does not contest the argument that the ruling was erroneous. Instead, it contends that no proffer was made and thus no reversal should be had on this point. Ark. Unif. Rules of Evid. 103 (a) and 103 (a) (2) provide:

Rule 103. Rulings on evidence. — (a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
* * *
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Normally, we will not consider a point involving the exclusion of evidence when there was no proffer of excluded evidence because we have no way of knowing the substance of the evidence. Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980). However, there is no need for a proffer in either of two situations. First, there is no need for a proffer where the substance of the offer was apparent from the context within which the questions were asked. Rule 103 (a) (2). Here, the distinction between charges of capital felony murder with a possible sentence of death and murder in the first degree with a maximum sentence of forty years or life with the possibility of parole is obvious to one trained in law. A jury is not trained in criminal law and might not understand that the accomplice may well have taken a desperate option and prevented risking his own life by blaming the appellant. This is the very type of evidence of bias which the defendant is entitled to present for a jury to weigh. The substance of the answer to the question objected to is apparent to us. Second, in this situation it is normally only the prosecutor and the accomplice who know what expectation, if any, the state is holding out for the accomplice. The defendant and his attorney do not usually have this information. Rule 103 (a) (2) does not contemplate a proffer of evidence when the information is unavailable to the cross-examiner. The exclusion of evidence of possible bias or possible prejudice by the accomplice is sufficient. A proffer was not necessary.

The error is prejudicial and requires that we reverse the case. However, we must also address appellant’s next argument in great detail because, he argues, it requires not only reversal but also dismissal. That issue is whether there was sufficient corroboration, independent of the testimony of the admitted accomplice, to sustain the conviction.

The testimony of an accomplice must be corroborated by other independent evidence which tends to connect the defendant with the commission of the crime. It is not sufficient to prove that the crime was committed and the circumstances of the crime. Ark. Stat. Ann. § 43-2116 (Repl. 1977); Pollard v. State, 264 Ark. 753, 574 S. W.2d 656 (1978). The test for determining, the sufficiency of corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Bly v. State, 267 Ark. 613, 593 S.W.2d 450 (1980), citing Froman v. State, 232 Ark. 697, 339 S.W.2d 601 (1960); Anderson v. State, 256 Ark. 912, 511 S.W.2d 151 (1974). Corroboration must be evidence of a substantive nature since it must be directed toward proving the connection of the accused with the crime and not directed toward corroborating the accomplice’s testimony. Olles v. State, 260 Ark. 571, 573, 542 S.W.2d 755, 758 (1976), citing Yates v. State, 182 Ark. 179, 31 S.W.2d 295 (1930). In addition to being substantive, the corroborating evidence must be substantial. Olles, at 573, 542 S.W.2d at 757. Substantial evidence is stronger evidence than that which merely raises a suspicion of guilt. It is evidence which tends to connect the accused with the commission of the offense charged. However, it is something less than that evidence necessary in and of itself, to sustain a conviction. Olles, at 573, 542 S.W.2d at 757-58; Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976). The corroborating evidence may be circumstantial, but it must be of a material nature and legitimately tend to connect the accused with the commission of the crime. Pollard at 756, 574 S.W.2d at 658, citing Roath v. State, 185 Ark. 1039, 50 S.W.2d 985 (1932). Corroboration may be furnished by the acts, conduct, declarations or testimony of the accused. Olles, at 574, 542 S.W.2d at 758. False statements to the police and flight by an accused may constitute corroborating evidence. Bly, at 619-20, 593 S.W.2d at 454. On the other hand, an explanation by the accused of suspicious circumstances may be considered in determining whether the corroborating evidence is sufficient. Olles, at 575, 542 S.W.2d at 759, citing King v. State, 254 Ark. 509, 494 S.W.2d 476 (1973).

To test the sufficiency of the corroborating evidence in this case we eliminate the testimony of Jeffrey Brown, the accomplice, and determine whether the testimony of the other witnesses establishes the crime and tends to connect the accused with the commission of that crime.

Brian Francis, the older brother of victim Steve Francis, testified that Steve was a regular seller and consignor of marijuana. Often he would consign marijuana to comeone in order for that person to resell it and pay him. Brian Francis testified that on the evening of January 30, 1982, Steve Francis had between an ounce and two and one-half ounces of marijuana in a brown bag. Steve also had $90 in his billfold. Robert Cooper and Mark Batson, both Arkadelphia policemen, testified that they found the victims Steve Francis and Diane Francis in their Chevrolet automobile on Hunter Street in Arkadelphia shortly after 5:00 a.m. on January 31. Both were dead. Dr. Fahmy A. Malak, the State Medical Examiner, testified that both victims died between 10:00 and 11:00 p.m. on January 30, 1982 from contact gunshot wounds to their heads. He removed the bullet fragments and supplied them to the State Crime Laboratory.

Ralph Turbyfill, the Chief Latent Fingerprint Expert with the State Crime Laboratory, examined the victims’ Chevrolet automobile but found only the victims’ fingerprints. He found mud on the back seat floorboard which indicated at some time someone entered the back seat from the passenger side and exited on the driver’s side. He also found the brown bag in which the victim usually kept marijuana. It contained one plastic bag containing marijuana and a number of unused baggies.

Jack Ursery of the Arkansas State Police searched the pockets of the victims’ clothing and found only four pennies in one of Steve Francis’ pockets. His billfold did not contain any money. This chain of evidence establishes the murders in the course of robbery and proves the circumstances surrounding the crime. However, it does not tend to connect appellant with the crimes.

The following evidence tends to connect the appellant with the robbery and murders. Don Holmes, appellant’s half-brother, testified that for six weeks prior to the murders appellant had lived in a room of his home. Holmes identified a .22 caliber pistol which he had kept under a diaper box and discovered missing four weeks before the crimes. One week later, three weeks before the crimes, he found the gun in his home and hid it under his mattress. The day after the murders, the police came to his house to search appellant’s room. The fully loaded .22 caliber pistol was still under Holmes’ mattress. He gave the pistol to the police.

Robert Phillips, the Firearms and Tool Mark Examiner with the State Crime Laboratory, testified that he performed a comparison of the bullets removed from the victims and test bullets fired from Holmes’ .22 caliber pistol and he could neither identify nor eliminate the pistol as the one which fired the fatal bullets but testified that the fatal bullets were fired “from this weapon or one just like it.”

Jeff Buford testified that on the night of January 30 he drove to the Holmes residence for the purpose of visiting appellant. He stated that the Francises’ Chevrolet automobile was parked in front of that residence and he parked about one and one-half car lengths from their car. He testified that he did not see either of the victims. On direct examination he stated that the time of this observation was between 9:45 and 10:20 p.m. but on cross-examination he stated that he did not have a watch on and his car did not have a clock but guessed that it was later than 9:00 p.m. and before 11:00 p.m. He testified that the appellant stated he was about to purchase a quarter of a pound of marijuana and would meet him later at a car wash and sell some of it to him. However, appellant never met him at the car wash.

Ricky Arnold and Bruce Golden testified that around 11:00 p.m. the appellant was at Arnold’s apartment. Golden testified that at that time the appellant had a zip-lock bag half full of marijuana while Arnold testified that the bag was full. Both testified that the appellant left Arnold’s apartment within the hour. Around midnight, and after appellant had left, Arnold and Golden went to a local nightclub, the Watergate Club. There Arnold saw the appellant rolling a marijuana cigarette.

Charles Lambert, a criminal investigator for the Arkansas State Police, testified that he and Sergeant Jack Ursery interviewed appellant in North Little Rock three days after the crimes and appellant denied that he had known the victims, denied that he knew the accomplice and denied having any marijuana on the night of the crimes.

The appellant testified that his livelihood came from collecting welfare and selling marijuana. He stated that Steve Francis, one of the victims, was his regular supplier of the drug and on the evening of the crimes came by to sell him $90 worth of marij uana. Appellant stated that he paid $30 at the time and Francis gave him $60 credit until the next morning. He intended to sell the marijuana that night at the Watergate Club. He stated that the Francises then drove away and he went to Lavonne Todd’s house, then to Bennie Lee Barnes’ house, then to Ricky Arnold’s apartment and then to the Watergate Club to sell the marijuana. He admitted to having about $100 in cash at the club and admitted he had only $30 earlier. He testified that he acquired the money from marijuana sales but could account for only one $5 sale. The next morning he waited for Francis to come by his residence to collect the $60. He waited until 2:30 in the afternoon and he and the accomplice went to his cousin’s house in Hot Springs “to party.” After that he went to a relative’s home in North Little Rock. He said he was not attempting to flee as he did not take all of his clothes; he took only one pair of pants and two shirts. Appellant denied killing the Francises. He testified that he had no motive to kill them because Steve Francis was his main supplier of marijuana.

Appellant readily admitted trying to pawn his half-brother’s pistol some weeks before the crimes as described by Doug White. He stated this was done in order to get money to purchase marijuana. He admitted lying to the police about knowing Steve Francis because he thought he was being arrested for selling marijuana which he had purchased from Francis.

The summary of testimony establishes six items of evidence to be weighed in order to determine if there is something more than suspicion for corroboration. Those six are as follows: (1) Appellant was seen standing near the victims’ family automobile for a short period of time. The time was estimated by the witness to be as early as 9:00 and as late as 10:20 p.m. The estimate of the time of death of the victims is between 10:00 and 11:00 p.m. Therefore, appellant could have been near the victims' car shortly before or as much as two hours prior to the deaths. The jury may have concluded these times coincided and that inference is permissible under the proof. (2) Appellant possessed half of a bag of marijuana shortly after one of the victims had been robbed of his marijuana. This possession of marijuana could be viewed as incriminating when examined with the other evidence. (3) Appellant had access to Don Holmes’ .22 caliber pistol. The victims were murdered with shots fired from a .22 caliber pistol. (4) At 2:30 on the afternoon following the murders the appellant went to Hot Springs and later to North Little Rock. He had not returned on February 3 when suspicion began to center on the accomplice and him. He had not told his half-brother, Don Holmes, he was leaving town. (5) Appellant, upon first being questioned, gave the police a statement which included three pieces of false information: (a) he denied that he knew the victims; (b) he denied that he knew the accomplice, Jeffrey Brown; and (c) he denied having any marijuana on the night in question. Appellant’s explanation of the above factors may be considered in determining whether there is a sufficient link in a chain of circumstances making the corroborating evidence sufficient. In his testimony he admitted that he lied about all three points when he was first questioned. He stated that he thought the police were there to arrest him for selling drugs which he had purchased from Steve Francis. The credibility of appellant’s explanation of why he gave false statements was for the jury to decide. (6) Appellant’s friend, Jeff Buford, was a reluctant witness for the State. He testified that as he was driving by appellant’s house, he saw appellant coming out to the Francis vehicle. When appellant saw Buford he flagged him down and had a conversation with him: “He kind of told me what was going on, that he was going to get some marijuana, a quarter of a pound, and to meet him at the car wash in an hour. He didn’t say where he was going to get this quarter of a pound, but he said he was going to get. He was going to cop one, is what he said.” On cross-examination Buford tried to minimize the word “cop” as meaning “to buy.” But the word is well recognized as a slang for “steal.” Webster’s New Unabridged Dictionary, 2d Edition, defines “cop” as “to steal, or to rob, especially on the spur of the moment.”

The corroborating evidence is sufficient to sustain the conviction. Therefore, even though prejudicial error occurred in limiting cross-examination, we only reverse and remand for new trial.

Most of the other assigned points of error are not likely to arise again upon retrial. The issues regarding the qualification of the jury for the death penalty are now moot. Fuller v. State, 246 Ark. 704, 439 S.W.2d 801, cert. denied, 396 U.S. 930 (1969); Sneed v. State, 159 Ark. 65, 255 S.W. 895 (1923).

Reversed and remanded.

Hays, J., dissents.

Steele Hays, Justice, dissenting.

I disagree that this case should be reversed simply because the trial court sustained an objection to a question which may have been objectionable. The question — “What kind of deal are you getting for yourself, Mr. Brown?” — is, at best, argumentalive and the ruling may have been prompted by the form of the question. Had counsel asked questions of the witness in proper form with respect to a negotiated plea, the matter would have been relevant and, doubtless, admitted by the trial court. The fact that the trial court was not denying the defense the right to question the witness concerning a trade-out for his testimony is demonstrated by the follow-up question, “Mr. Brown, you expect to be out of j ail fairly soon don’t you, sir?” If the point was deemed important to the defense, the issue should not have been abandoned so abruptly.

Even if the ruling was technically incorrect, which is debatable, it fails to meet the requirement of Rule 103 of the Uniform Rules of Evidence, that error may not be predicated on a ruling which admits or excludes evidence unless a substantial right of the party is affected. Counsel heard the comment from the prosecutor, “There’s no deal.” He could easily have asked the witness whether he had any understanding or expectation of leniency, yet he chose not to do so and I would not impose the heavy burden of another trial simply to provide a second opportunity for one which was originally declined.


author: Steele Hays, Justice.

text:
    Meyer BRICK v. Vera B. SIMONETTI et al
    83-2
    652 S.W.2d 23
    Supreme Court of Arkansas
    Opinion delivered June 13, 1983

      Rubens ir Rubens, by: Kent J. Rubens, for appellant.

      Rieves, Shelton & Mayton, for appellees.
   Steele Hays, Justice.

Meyer Brick and Vera Simonetti were opposing candidates for Justice of the Peace in District No. 11, Crittenden County, in the Democratic Preferential Primary held on May 25, 1982. Simonetti won the election and Brick has challenged her residency qualifications as set out in Ark. Stat. Ann. § 17-3605 and Art. 7, § 4 and Art. 19, § 4 of the Arkansas Constitution. Section 17-3605 specifically provides that all Quorum Court officers reside within their respective districts. The trial court sitting as a jury found that Simonetti was a resident of and domiciled in District No. 11.

Simonetti has resided in Crittenden County, Mound City Township, for thirty-seven years. In 1975, the township was made a part of District No. 11. Simonetti has since run for Justice of the Peace for that district at each election. On February 2, 1982, there was a reapportionment and Mound City Township was moved to District No. 10. Until Simonetti received a letter from Jake Brick, the Chairman of the Democratic Central Committee on March 24, 1982, she believed that she was in District No. 11. In order to qualify for the position, Simonetti then moved to an apartment within District No. 11. She moved in enough furniture to set up housekeeping, changed her voter registration to the new address and obtained a telephone in her own name. Later, she moved in enough furniture to furnish two bedrooms, a living room and a kitchen. She entertained friends there and ate most of her meals there. There was testimony from other apartment occupants that she had made the apartment her home and was living there.

The issue involved, however, is whether or not this move fulfilled the requirements of § 17-3605, which states:

... [L]egal residence shall be defined as the domicile of the officer evidenced by the intention to make such residence a fixed permanent home, (our italics)

Brick contends that the evidence was insufficient as a matter of law to support a finding that Simonetti was domiciled in District No. 11.

Brick cites several cases where residency issues were involved and underscores our general requirements that conduct and actions must be in conformity with the stated intent. Booth v. Smith, 261 Akr. 838, 552 S.W.2d 19 (1977) and that both the intent and conduct must be considered as factors, Pike County School District 1 v. Pike Board of Education, 247 Ark. 9, 444 S.W.2d 72 (1969). Leflar, Conflict of Laws, § 10 is also cited:

... The principal manner by which a new domicile can be acquired is by physical presence at a new place with the state of mind of regarding the new place as HOME. The new domicile arises instantaneously when these two facts occur. . ..

Meyer Brick points to certain conduct which he claims is inconsistent with Vera Simonetti’s declared intent to make the apartment her permanent home — receipt of mail at the same post office box as that of her prior home, residence at the previous home for thirty-seven years, living apart from her husband of many years, leaving behind her china, washing machine, some of her clothing, and leasing the apartment for only one year.

But these circumstances are not so convincing as to override the trial court’s finding that Simonetti intended to reside permanently within the district. The post office box where she had been receiving her mail prior to moving to the apartment is three-quarters of a mile from her apartment and, evidently, a convenient place to receive mail. She testified that she had access to a washing machine at the apartment complex and had no need to move the one from the farm. The maximum time for which a lease could be given on the apartment was one year. As to being separated from her husband, she stated that he was only five minutes away if he needed her. It isn’t necessary that her every arrangement be found plausible, if the cumulative circumstances, considered along with her sustained interest in politics, do not compel us to a view different from that of the trial court. Gleaning a state of mind is uncertain work, at best, yet intent, in large measure, determines where one’s home is. Here, the trial court pointedly commented on the credence he attached to the assertions of Simonetti that she intended to make her permanent home in the district, and that finding must weigh heavily on review. Where those assertions are supported by manifestations consistent with such an avowed intent, we are not inclined to declare that clear error occurred. See ARCP Rule 52 (a).

Brick also points out that the logical purpose of the constitutional and statutory requirements of residency is so that elected officials will reside in the same district as their constituents, and thereby better know and serve the interests of their constituency. In this case, in addition to finding the evidence sufficient, we find nothing to suggest that the stated purpose of the statute is being thwarted. Simonetti was not only a long time resident of the area, but had a proven interest in local politics. As to District No. 11 specifically, she had been within that district since 1975, and it was only by a quirk of redistricting, shortly before the election, that her prior home was placed outside the district.

We are satisfied that under all the circumstances of this case the trial court had sufficient evidence to find Mrs. Simonetti a resident of District No. 11 in accordance with § 17-3605.

Affirmed.

       § 17-3605. Residence required. — All county, Quorum Court District and township officers shall reside within their respective townships, districts and counties. An office shall be deemed vacant if a county officer removed his legal residence from the county or a Quorum Court District or township officer removes his legal residence from the district township from which elected. For purposes of this section, legal residence shall be defined as the domicile of the officer evidenced by the intent to make such a residence a fixed and permanent home. [Acts 1977, No. 742, Ch. 2, Part E, § 45, p. 1736; 1979, No. 413, § 9, p--].


author: Per Curiam.

text:
    Lyndell APPLETON-RICE, Guardian of the Estate of Mary Ella DAVIS, an Incompetent v. Dr. Joe CRUMPLER, Dr. Douglas LOWERY, and Dr. David WILLIAMS
    83-140
    _ S.W.2d _
    Supreme Court of Arkansas
    Opinion delivered June 13, 1983

      Edward Gordon, for petitioner.

      W. A. Eldredge, for respondent.
   Per Curiam.

Appellant has filed a Petition for Writ of Certiorari requesting a 60-day extension of time from June 6. 1983, to complete and file the record on appeal, alleging that the extension is needed for the court reporter to be able to prepare the transcript. Appellees have filed a brief in opposition and asked that the writ be denied and the case dismissed.

On November 12, 1982, judgment was entered in this case in the trial court. On December 7,1982, notice of appeal and designation of the record was filed by appellant. The notice of appeal did not contain a statement that the designated portions of the transcript had been ordered from the court reporter as required by Rule 3 (e), Rules of Appellate Procedure, Ark. Stat. Ann., Vol. 3A (Repl. 1979).

On February 16, 1983, appellant filed a motion to extend time to prepare and file the transcript of the proceedings stating that “the court reporter has advised that she will need the full seven (7) months to prepare and file the transcript of the proceedings.” This motion was granted on February 16; the trial court extended the time for filing the transcript until June 6, 1983; but, contrary to the requirement of Rule 5 (b), Rules of Appellate Procedure, Ark. Stat. Ann., Vol. 3A (Repl. 1979), the trial court did not find “that a reporter’s transcript of such evidence or proceeding has been ordered by appellant. ...”

This court had occasion to rule on this precise issue in Hudson v. Hudson, 277 Ark. 183, 641 S.W.2d 1 (1982):

The provision for ordering the transcript under Rule 3 (e) has been construed to be satisfied by substantial compliance, provided the appellee has not been prejudiced or misled by the failure to strictly comply with the rule. Brady v. Aiken, Inc., 273 Ark. 147, 617 S.W.2d, 358 (1981); Davis v. Ralston Purina Co., 248 Ark. 14, 449 S.W.2d 709 (1970). However, we stated in Brady, supra, that:
... Our review is that if for any reason counsel are not able to state in the notice of appeal that the transcript or portions of it have been ordered, the proper practice would be for an appropriate explanation to be included in the notice of appeal.
Here, there was no compliance with the pertinent provisions of Rule 3 (e), substantial or otherwise. The rule was totally ignored. The trial court erred in not dismissing the appeal for failure to file a proper notice of appeal. ...

On February 17, 1983, appellees filed a Motion to Dismiss Appeal in the trial court on the basis that the appellant had failed to comply with Rule 3 (e) in filing his notice of appeal. The trial court erred in not dismissing the appeal because appellant failed to follow the requirement of Rule 3 (e) in filing the notice of appeal. Appellees have renewed their motion to dismiss in this court based on Rule 3 (e) which should be granted.

The appeal is dismissed and the trial court’s final decree of November 12, 1982, is affirmed.

Holt, Purtle and Hays, JJ., would grant petition.


author: Per Curiam. Richard B. Adkisson,

text:
    Cecil KNAPPENBERGER v. STATE of Arkansas
    CR 83-7
    652 S.W.2d 25
    Supreme Court of Arkansas
    Opinion delivered June 13, 1983

      Howard ir Howard, by: William B. Howard, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Per Curiam.

Petitioner Cecil Knappenberger was charged with second degree murder and convicted by a jury of manslaughter, Ark. Stat. Ann. § 41-1504 (Repl. 1977). He was sentenced to a term of ten years imprisonment in the Arkansas Department of Correction. We affirmed. Knappenberger v. State, 278 Ark. 382, 647 S.W.2d 417 (1983), amended on denial of rehearing (March 28, 1983).

When this case first came before us on direct appeal, petitioner raised the same allegations that he now raises in this petition. In our first opinion we indicated our approval of an evidentiary hearing on the allegations of ineffective assistance of counsel without requiring a separate verified petition for postconviction relief in this Court. On rehearing, we amended our original opinion to note that A.R.Gr.P. Rule 37.1 requires that a separate verified petition for postconviction relief be filed in this Court after a case has been affirmed on appeal if the allegations of ineffective assistance of counsel are being raised for the first time. Petitioner has now submitted such a petition.

Permission is granted for petitioner to proceed in circuit court on the specific allegations of ineffective assistance of counsel set out in the petition.

Petition granted.

Adkisson, C.J., and Hays, J., dissent.

Richard B. Adkisson,

Chief Justice, dissenting. Petitioner is not entitled to postconviction relief. The allegations that counsel’s cross-examination was irrelevant and that he allowed the jury to hear prejudicial testimony does not warrant an evidentiary hearing. The style of questioning a particular witness is a matter about which competent advocates could disagree. While some counsel are more skilled in the area of cross-examination, a line-by-line examination of an attorney’s questions to determine how effective they are is not within the purview of our post-conviction rule unless petitioner can demonstrate prejudice and the denial of a fair trial. Even if a question proves unwise in retrospect, mere errors are not good cause for granting relief. Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973).

With regard to petitioner’s confession, it is apparent that the ultimate fact of petitioner’s guilt is given little consideration. He does not allege that his confession was not a true statement of his involvement in the crime. He does not allege that it was coerced or otherwise involuntary. He argues instead that since there were no eyewitnesses to the crime, he would not have had to testify in his own behalf at trial and would have been entitled to a directed verdict on the charge of first degree murder if his confession had not been introduced into evidence. He asks this Court in effect to weigh the evidence existing at the time he confessed and that which would have developed at trial and conclude that counsel erred in allowing him to confess. It is apparent that petitioner is seeking to expand the standard by which we judge the competence of attorneys in criminal cases. There is a presumption of effective assistance of counsel. Hoover v. State, 270 Ark. 978, 606 S.W.2d 749(1980). To overcome that presumption a petitioner, must show by clear and convincing evidence that he was prejudiced by the conduct of counsel. Unquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982). Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981). Furthermore, he must show that the actual prejudice suffered denied him a fair trial. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983); Blackmon, supra. In determining whether a petitioner was prejudiced, and as a result denied a fair trial, this court must not attempt to weigh the evidence against the petitionei when counsel gave his advice. There is no doubt that there are any number of criminal cases in which an accused elects on advice of counsel to confess or give a statement which later contributes in some degree to his conviction. Rule 37 was not designed to provide a method for retracting an otherwise valid confession or statement merely because the petitioner later attacks the sufficiency of the evidence against him. Society deserves finality in criminal cases. Claims of ineffective assistance of counsel must be scrutinized carefully; they must not be a means to frustrate the legal process and undermine findings of guilt reached by way of a full and fair trial. Petitioner here has not met the heavy burden of showing that counsel’s conduct prejudiced him and resulted in denial of a fair trial.

I am hereby authorized to state that Hays, J., joins in this dissent.


text:
    J. D. WILLIS v. CRESTPARK OF WYNNE, INC. (Intermediate)
    83-49
    652 S.W.2d 625
    Supreme Court of Arkansas
    Opinion delivered June 20, 1983

      Killough ir Ford, by: Robert M. Ford, for appellant.

      Rieves, Shelton ¿r Mayton, by: Elton A. Rieves, IV, for appellee.
   George Rose Smith, Justice.

In this slip-and-fall case the plaintiff Willis argues that the trial judge should not have directed a verdict for the defendant nursing home. We agree with the trial court. (Our jurisdiction includes tort cases. Rule 29 [1] [o].)

At about 9:45 a.m. Willis was about to visit Jim Sutherland, a patient in the nursing home. Willis testified that as he reached the foot of Sutherland’s bed “my feet went everywhere.” While he was still on the floor he heard an employee of the nursing home say, “I been telling them all the time that something like this was going to happen.” The other relevant proof is that Sutherland had been spitting at night for several years and often missed the waste can near the head of his bed, that the floor had been cleaned with a wet mop between 8:30 and 9:00 a.m., and that nothing was found on the floor when the cleaning employee checked the area not more than ten minutes after Willis fell.

Willis had the burden of proving that he slipped on a substance which either had been put there by the defendant’s negligence or had been there so long that the defendant should have known of it and was negligent in not removing it. AMI Civil 2d, 1105 (1974). Willis failed to make a case for the jury. He did not even prove what substance, if any, caused his fall. He argues that it could have been Sutherland’s sputum, though there is no proof that Sutherland ever spat either during the daytime or near the foot of his bed, or that it could have been moisture left by the mop at least 45 minutes earlier, through no one testified that the floor was other than dry when Willis fell. The plaintiff’s proof fell decidedly short of proving that his fall was caused by the nursing home’s negligence. The trial judge had no choice except to direct a verdict for the defendant.

Affirmed.


text:
    Herman PICKENS v. STATE of Arkansas
    CR 83-13
    652 S.W.2d 626
    Supreme Court of Arkansas
    Opinion delivered June 20, 1983

      Gene E. McKissic, for appellant.

      Steve Clark, Atty. Gen., by: A lice Ann Burns, Dep. Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellant was convicted by a jury of burglary and aggravated robbery. The jury fixed his punishment, as a habitual offender, at 30 years imprisonment for the burglary and 60 years imprisonment for the aggravated robbery conviction. Three points are raised on appeal. We affirm.

The appellant first argues, through his court appointed counsel, that the trial court erred by denying him, an indigent, an independent fingerprint expert at state expense in violation of his right to due process of law. The critical testimony with respect to identification came from a fingerprint expert with the FBI, who testified that the appellant’s palm print was found on a paper bag. The robber had masked his face with a paper sack during the alleged robbery following which a paper sack was discovered in that portion of the bank where the robbery occurred. Prior to trial the appellant requested state funds to hire an independent expert to examine and evaluate the palm prints on the bag. He did not name nor list any particular expert; he did not provide the court with a list of possible experts whom he might call; he did not make a proffer of any evidence that might be adduced; and he made no suggestions as to what the cost of the expert testimony might be. He merely requested funds to pay for the attendance of an out-of-state fingerprint expert. We have held that the decision whether to provide a defendant with an unnamed fingerprint expert to rebut the state’s expert testimony is within the discretion of the trial court. Adams v. State, 276 Ark. 18, 631 S.W.2d 828 (1982); see also, Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982); and Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979). We find no abuse of discretion here.

The appellant next argues that the trial court erred in admitting into evidence the identification testimony of Judy Gibbs and Leon Carroll based upon their identification of him at a pretrial lineup. Gibbs was the bank employee who was held up. She did not see the assailant’s face, because he had a paper sack with eye holes over his head. She was able to describe his build and body shape. She picked the appellant out of a lineup one month after the robbery. She admitted that her identification was not positive. Carroll saw a man emerge from the bank at the approximate time of the robbery. He said that the appellant looked exactly like the man whom he saw but he could not say for certain it was he. He had also picked the appellant out of the same lineup. Appellant’s argument is that this testimony was irrelevant and, even if relevant, inadmissible because its probative value was outweighed by its prejudicial effect. Ark. Stat. Ann. § 28-1001, Rules 401, 402 and 403 (Repl. 1979). However, as abstracted, the record does not reflect that these specific arguments were addressed to the trial court. They are raised for the first time on appeal. Consequently, we do not consider them. Pace v. State, 265 Ark. 712, 580 S.W.2d 689(1979).

Finally, the appellant argues that the evidence was not sufficient to support the jury verdict. It is undisputed that a burglary and robbery occurred, but the appellant contends that the identification testimony is insufficient, and there is no direct evidence placing him in the bank. Judy Gibbs, the bank employee who was the victim of the crime, testified that the assailant was of the same general build as the appellant. She picked him out of a lineup of persons similar in appearance when each man stepped forward and reiterated the words of her assailant. At the armed robber’s command, she had placed the bank money in a dirty sack, the size of a pillow case. Leon Carroll saw a man carrying a “big old sack” as he left the bank at the approximate time of the crime. The appellant looked exactly like the man whom he saw. He, as did Gibbs, had picked appellant from the lineup. It is true that neither witness was certain in their identification. The state, however, adduced evidence that a paper sack, which had not been in the manager’s office where the robbery occurred the day before the crime, was found there following the crime. The appellant’s palm print was found on this sack. Certainly, this evidence is sufficiently substantial to support the jury’s verdict. Brown v. State, 278 Ark. 604, 648 S. W.2d 67 (1983); and Smith v. State, 277 Ark. 64, 639 S.W.2d 348(1982).

Affirmed.


author: Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    James F. MILLER v. Floyd J. LOFTON, Judge, et al
    83-31
    652 S.W.2d 627
    Supreme Court of Arkansas
    Opinion delivered June 20, 1983

      Davidson, Horne, Hollingsworth, Arnold ir Grobmyer, by: Allan W. Horne; and Virginia R. Williams, Rule XII Law Student, for petitioner.

      Steve Clark, Atty. Gen., by: David L. Williams, Deputy Atty. Gen., for respondent.
   Darrell Hickman, Justice.

James F. Miller is a licensed bail bondsman and he filed this original action with us seeking a writ of prohibition against six Pulaski County judges. He asks that an order they entered on November 1, 1982, be declared void and they be prohibited from enforcing it. He also asks that an oral order entered by Judge Floyd Lofton, apparently denying a criminal defendant bail on a bond Miller had written for an appearance in Little Rock Municipal Court, also be declared void.

The petition concedes that the judges have some jurisdiction regarding bail but not to enter the order they did, which is a comprehensive local order concerning bail in their courts. It is argued that the Insurance Department has the sole power to license and regulate bail bondsmen in Arkansas by virtue of Act 400 of 1971. Furthermore, it is argued that Act 400 repealed by implication Act 268 of 1979 in which the General Assembly recognized that trial courts had authority to deal with bail and bail bondsmen. It is also stated Judge Lofton’s order violates A.R.Cr.P., Rule 9.

We deny the petition for the writ of prohibition because it is not in order. A writ of prohibition is an extraordinary writ and is only granted when the lower court is wholly without jurisdiction, there are no disputed facts, there is no adequate remedy otherwise, and the writ is clearly warranted. Webb v. Harrison, 261 Ark. 279, 547 S.W.2d 748 (1977). The true test of whether appeal is an adequate remedy is answered in determining if the lower court is without jurisdiction. Springdale School District v. Jameson, 274 Ark. 78, 621 S.W.2d 860 (1981).

The order in question is quite sweeping, and obviously contains some questionable features, but we do not reach those features because prohibition is not the proper remedy in this case for several reasons. First, the trial judges do have some inherent jurisdiction and authority in the matter; second, the nature of the so-called oral order of Judge Lofton — at one point it is referred to as an explanation of the written order — is not exactly clear. The State does not concede such an “order” was given. Finally, to grant a writ of prohibition in this case we would have to determine exactly all of the jurisdiction and authority of the lower court judges in the matter of bail, reconcile Acts 268 and 400, or determine if the latter repealed the former by implication, rule on orders that have already been entered, and anticipate all the questions that could arise from the broad order of the lower court judges.

These are the very reasons that a writ of prohibition, a narrow, extraordinary writ, should not be granted, even if part of the order is beyond the jurisdiction of the judges. Those questions can be properly raised on appeal.

Writ denied.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I agree with the law as stated in the majority opinion. However, I would consider the case on its merits and make a decision now rather than put the parties through the trouble and expense of an additional trial. As it now stands we will face the same situation when it next comes before us on appeal.


author: Robert H. Dudley, Justice.

text:
    Sheila CASTLEMAN v. Billy DUMAS et ux
    83-43
    652 S.W.2d 629
    Supreme Court of Arkansas
    Opinion delivered June 20, 1983

      David M. Donovan, for appellant.

      W. Q. Hall, for appellees.
   Robert H. Dudley, Justice.

Billy and Elda Dumas, appellees, filed a petition in the County Court of Madison County alleging that they have no access to their lands. They petitioned the court to appoint road viewers to lay out a road connecting their land to a county road running along appellant’s land. The county court appointed three viewers who determined that it is necessary for appellees to have a road laid over appellant’s land. They established where the road should be and assessed damages totaling $2,500. The county judge issued an order in accordance with the viewers’ report and appellant, Sheila Castleman, appealed to circuit court.

The circuit court found that it is necessary that the appellees have a road laid out and established to their property; that the road laid out by the viewers is the most reasonable and feasible route considering the convenience and inconvenience to all parties concerned; and that the damages set by the viewers for the road easement are reasonable and proper. We affirm. Jurisdiction is in this Court pursuant to Rule 29 (1) (c).

Appellant raises three points for reversal. First she alleges that the circuit court erred in failing to consider the requirement of necessity for the proposed road as required by Ark. Stat. Ann. § 76-110(Repl. 1981). In Pippin v. May, 78 Ark. 18, 21, 93 S.W. 64 (1908), we stated as follows:

In determining whether such a road is necessary, the court must, of course, take into consideration, not only the convenience and benefit it will be to the limited number of people it serves, but the injury and inconvenience it will occasion the defendant through whose place it is proposed to extend it. After considering all these matters, it is for the court to determine whether the road is, within the meaning of the law, necessary or not.

The trial court specifically found that it was necessary that the appellees have a road laid out to their property. Appellant, however, argues that appellees had access to their land over another portion of appellant’s land, although the alternate route was less convenient to the appellees. Appellant is correct that mere inconvenience is not a sufficient reason to entitle one to condemn a private right-of-way over another’s land. Mohr v. Mayberry, 192 Ark. 324, 90 S.W.2d 963 (1936). However, in this case, unlike the situation in Mohr, the evidence established that appellees did not have a way off their own land to the highway and were not seeking to condemn appellant’s land for their own convenience. The road viewers, the county court, and the circuit court all found that the proposed road was necessary to give the appellees a means of ingress and egress. In addition, the proposed route was found to be the most convenient and the least injurious to all parties involved, including appellant.

The appellant did not appear in person at the trial and her attorney called no witnesses. All of the witnesses were called by the appellees. Although appellant argues that she offered and would have preferred the road on another portion of her property, there is no evidence of this in the record.

Second, appellant argues that the circuit court erred in requiring the appellant to show that the order of the county court was incorrect. There was no prejudice because the circuit court allowed the case to proceed to trial with the appellees establishing their case de novo as required by Ark. Stat. Ann. § 27-2007 (Repl. 1979). See also Armstrong v. Cook, 243 Ark. 230, 419 S.W.2d 308 (1967). Appellant contends that despite the appellees’ assumption of the burden of proceeding first with their proof, she erroneously retained the burden of establishing the critical issues such as necessity and damages. There is no merit to appellant’s contentions, however, because the findings of the trial court on all of the critical issues are supported by the unrefuted evidence presented by the appellees and are not clearly erroneous. ARCP Rule 52; Alley v. Rodgers, 269 Ark. 262, 599 S.W.2d 739(1980).

Finally, appellant contends that the circuit court erred in assessing damages. The road viewers set appellant’s damages at $2,500. Ark. Stat. Ann. § 76-110 (Repl. 1981) provides for the assessment of damages by the viewers and the trial court found their assessment reasonable. The viewers testified that in assessing damages they considered the value of the land taken, the fact that fences would have to be built, and the “nuisance value.” The appellant did not submit any evidence nor did she refute the qualifications of the viewers or their testimony. The trial court’s findings on this issue were supported by the evidence and not clearly erroneous. ARCP Rule 52.

Although this case is affirmed, the appellant is entitled to her costs of the appeal to this Court in this particular type of case. The reason is that it would be most unfair to take one’s land and require her to pay the costs of that proceeding. Parrott v. Fullerton, 209 Ark. 1018, 193 S.W.2d 654 (1946).

Affirmed.

Hickman, J., concurs. See Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983).


author: McClure, C. J.

text:
    Woolfolk et al. vs. Wright, Ex’x.
    Bills of Exceptions : What must show and contain.

    Where papers are read in evidence by a party', on a trial, and the opposite party takes a bill of exceptions, undertaking to set out the evidence, it is his duty to insert such papers in his hill of exceptions, or have them filed, so the cleric may insen't them.

    Same : Documenta/ry evidence need not he inserted.

    It is not absolutely necessary to insert documentary evidence in a bill of exceptions; but it must be attached to the bill, and identified by being referred to as exhibits, etc.
    APPEAL from Chicot Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      Garland & Nash, and Watkins & Rose, for appellants.
    Pike, Adams & Pike and B. S. Johnson, for appellees.
   McClure, C. J.

Lacy D. and Joseph L. Woolfolk, on behalf of themselves and other creditors of the estate of Junius W. Craig, deceased, and C. H. Carlton, administrator of the estate of Lewis E. Craig, deceased, one of the legatees of said Junius W. Craig, filed exceptions to the allowance and confirmation of an account filed in the probate court by Emma J. AVriglit, executrix of the estate of said Junius W. Craig. At the hearing in the probate court, some of the exceptions were sustained, and others were overruled, and the AVoolfolks, on behalf of themselvs and other creditors, and Carlton, as administrator of the estate of L. E. Craig, deceased, appealed.

In order to fully comprehend the question presented in this case, it becomes necessary to quote from the bill of exceptions, which reads as .follows;

“ It was also agreed between the parties, at the trial, that the following should be considered as introduced as evidence in said cause, to be weighed and considered' in the decision of the same, to-wit: all of the record entries in the records of this court, in regard to the probate and establishment of the last will and testament of the said Junius W. Craig, deceased, and of the granting of letters of administration on his estate; and also the several settlements which have from time to time been made by said administrator, and now on file in this court; also, the various entries in the records of the Chicot circuit court, in regard to the establishment of said last will and testament; also, a certain record entry and decree in the records of the chancery side of said circuit court, dated April, 1860, and known as the ‘ compromise decree; ’ and, also, one other certain record entry and decree on the records of said chancery side of said circuit court, dated October, 1866, in a case therein pending, wherein Joshua M. Craig and others were complainants, and Emma J. Wright and others were defendants; and, also, one other certain decree from the records of said chancery court, made at the December term, 1867, in a cause therein pending, wherein the creditors of Junius W. Craig, deceased, were complainants, and Emma J. "Wright and others were defendants. It is also further agreed that the will of the said James W. Craig, deceased, as the same is recorded in the records of this court; and also a certain petition for subrogation, filed by Emma J. Wright in this court, at the July term, 1867, should be considered as introduced in this cause. Said exceptions also offered in evidence the probate and allowance of the various accounts and claims against said estate, and more especially, said accounts for burial expenses, and expenses of last sickness at the Louisville Hotel, and also the allowance in favor of Robinson, Lewis & Craycraft, attorneys at law, for fees. ”

As will be observed, this bill of exceptions simply describes, in general terms, the evidence which it was agreed by counsel in the probate court, might be considered as evidence, at that hearing.

The object of a bill of exceptions is to put upon the record all the fads tending to show the decisions of the court respecting questions of law, which do not appear upon the record, and which arise in the course of the trial, so that when the case is afterwards removed to an appellate court, the bill of exceptions may be taken into consideration, and there finally decided, by which the decision of the court below will be affirmed or reversed.

Erom the rule here laid down, we deduce this one fact, that is, that the judgment of the probate court was to be affirmed or reversed by the circuit court, upon the case made by the bill of exceptions. In other words, the only means of ascertaining whether the probate court erred was by examining the hill of exceptions presented by the appellant.

This bill of exceptions, like that in the case of Dillard v. Parker et al., 25 Ark., 503, simply describes the transcripts and records used as evidence in the court below. In Taylor v. Spears, 8 Ark, 429, this court held that where papers are read in evidence by a party on a trial, and. the opposite party takes a bill of exceptions, undertaking to set out the evidence, it is his duty to insert such papéis in his bill of exceptions, and that if he neglects to insert them or have them filed, so that the clerk may insert them, it is his own fault, and he must suffer the consequences.

No one of the transcripts alluded to in the bill of exceptions, signed by the probate judge, or copies thereof, was attached to the record or made a part thereof. Did the thing called a bill of exceptions, in this case, advise the court below of any error ? If so, it was the duty of the court to so declare, and, in the event it should so find, to try the case de novo. Outside of the bill of exceptions, the circuit court could not go to ascertain if error had been committed. This being true, let us see if the bill of exceptions advised the court of the error complained of. If the exceptions served this purpose, we are at a loss to know why it was that it became necessary to seek to introduce the records of the probate court, to show wherein the probate court erred.

The bill of exceptions which was intended to show the error of the circuit court, reads as follows: “ And now on this day this cause came on to be heard upon the transcript of the proceedings of the probate court of Chicot county, Arkansas, whereupon the appellants offered to read in evidence, as part of the evidence which has been adduced before said probate court, the records and proceedings of the probate and circuit courts referred to in the bill of exceptions in this cause, to the reading of which records the appellee, by her counsel, objected, which objection was sustained by the court, and said appellants were not allowed to read any of said record, to which ruling of the court said appellants at the time excepted and filed this, his bill of exceptions.”

What better evidence could be presented than is found in this bill of exceptions, to show that the bill of exceptions presented to and signed by the probate judge was defective and did not show the error complained of, or else why the necessity of introducing the testimony used in the court below, aliunde? What better proof than this bill of exceptions could have been offered to prove that the bill of exceptions did not contain all the evidence used at the trial before the probate court? If there was no defect, there was no necessity for the introduction of the records, and if there was no necessity for the introduction of the records, then the court did not err in refusing to admit them.

Attached to the record in this case are copies of certain records of the probate and circuit courts of Chicot county, but whether they are copies of the records used before the probate court, or copies of the records which the appellants proposed to introduce before the circuit court, we have no means of ascertaining, as no means are taken to identify them, nor are they even described in the bill of exceptions signed by the circuit judge. Under such circumstances, we cannot consider them as a part of the record.

This court has frequently held that it is not absolutely necessary to insert documentary evidence in a bill of exceptions, but that it might be attached to the bill, and referred to as exhibit A, B and C, or as exhibit one, two and three. In this case there is no effort at identification. It may be said, however, that they are sufficiently described so as to identify them beyond all doubt. Let us see if this be true. The bill of exceptions signed by the probate judge, says : “ Said exceptors also offered in evidence the probate and allowance of this court of the various accounts and claims against said estate,” etc. This is a very general and indefinite description, and it would be very difficult for this or any other court to ascertain from it, on an examination of the bill of exceptions, whether or not all the orders, etc., had been attached to the record.

There may be some questions of merit in this case, but if so, they have been prematurely strangled by the counsel for the appellants, and we cannot consider them in the shape in which they are now presented.

The judgment of the circuit court is affirmed.

Gregg. J., dissented.


author: Searle, J.

text:
    Burk vs. Winters, Assignee, etc.
    Assi&nee in Bankruptcy : In suits by, how assignment proven, etc.

    To entitle an assignee in bankruptcy to recover in a suit by him as such assignee, he must prove the fact of the assignment, and the character in which he sues, by the instrument of assignment made by the judge of the court in which the proceedings were pending, or the register 'in bankruptcy, or a duly certified copy thereof, unless the nonproduction of such instrument or copy thereof be satisfactorily accounted for.
    APPEAL from Craighead Circuit Court.
    Hon. Wm. Story, Circuit Judge.

      U. M. Rose, for appellant.

      Montgomery & Warwick, for appellee.
   Searle, J.

The appellee, as assignee in bankruptcy of the estate of James N. Burk, sued the appellant in the Craighead circuit court, for the use and occupation of a certain farm, for the year 1868, situated in said county.

The appellant answered : 1st. That he was not indebted as in the complaint alleged. 2d. That he did not use and occupy any land in which the plaintiff had any right as assignee, etc.

Trial by jury; finding and judgment for appellee; and the appellant having properly saved his exceptions as to the rulings of the court in relation to the evidence and instructions to the jury, appealed to this court.

The answer, though ambiguous, seems to deny that the appellee, as assignee, etc., had such a right to or interest in the farm in question, as to entitle him to recover for use and occupation thereof. It is a well settled rule that, where there is an express contract of tenancy between the landlord and tenant, no proof of title will be requisite on the part of the landlord suing for use and occupation, and this is upon the principle that the tenant cannot dispute his landlord’s title. But this is not the case here. If the appellee is entitled to the rents and profits of the farm in question, it is in the character of assignee, and he must prove that an assignment was made of the farm to him, and that, by virtue of the assignment, he is entitled to the rents and profits thereof for the year 1868. In order to prove this, appellee orally testified that he was assignee in bankruptcy of appellant Burk; that the store of Burk was assigned to him as such assignee, and that the farm was a part of the estate so assigned. This was the only evidence of the character in which the appellee sued, and of the assignment of the farm to him. To the introduction of this testimony the appellant excepted. We think the exception was well taken. The instrument made by the judge of the •court, in which the proceedings of bankruptcy were pending, or by the register in bankruptcy, is the highest and best evidence of such fact. An authenticated copy of the assignment, when recorded, may be read. Bankrupt Act, sec. 14. Such Instrument of assignment, or copy thereof, is conclusive evidence of the assignee’s right to sue for any debt, etc., belonging to the bankrupt. Partridge v. Hannam, 2 Met., 569; Doane v. Russell, 3 Gray, 382. The inability to produce such-instrument, or a copy thereof, not having been shown, the oral, testimony was inadmissible. 1 Greenl. on Ev., secs. 84 and 519; Taylor v. Auditor, 4 Ark., 574; McNeill v. Arnold, 17 id., 155. As relating to the above testimony, the appellee asked, substantially, the following instruction : “ Before the jury can find for the plaintiff, they must find from the evidence that, the estate of Burk, including the farm in question, was assigned to the plaintiff as assignee, etc., and this must be proved by the instrument of assignment made by the judge of the court-in which the proceedings were pending, or the register in bankruptcy, or a duly certified copy thereof, unless the nonproduction of such instrument, or copy thereof, be satisfactorily accounted for.” This the court refused to give. The above-remarks in relation to the oral testimony of the assignment, are equally applicable to this instruction, and show that the-court erred in refusing to give it.

For these errors, the judgment is reversed, and the cause-remanded to the court below, to be proceeded in according to-law, and not inconsistent with this opinion.