author: Jim Hannah, Justice.

text:
    Samuel L. HENDERSON v. STATE of Arkansas
    CR 01-1299
    80 S.W.3d 374
    Supreme Court of Arkansas
    Opinion delivered July 5, 2002

      • Morse U. Gist, Jr., Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Jeffrey A. Weber, Ass’t Att’y Gen.,* for appellee.
   Jim Hannah, Justice.

Appellant Samuel L. Henderson appeals from his conviction for first-degree murder for the shooting death of cab driver Paul Hill, for which Henderson was sentenced to life in prison. Henderson raises eight points on appeal, but concedes that six of those points have no merit and are merely being noted pursuant to Ark. Sup. Ct. R. 4-3(h).

On December 13, 1999, Henderson, Dominic Simpson, and Aaron Burns met at a local youth center in Hot Springs. The three teenagers decided to walk to a Wendy’s restaurant, and on the way they stopped at Simpson’s aunt’s house where Simpson briefly went inside and came out with a bag of clothes. The group proceeded to Wendy’s, where Burns went inside to buy a hamburger while Henderson and Simpson talked about “hitting a lick,” which Henderson described in his trial testimony as meaning “making money.” Simpson called a cab to take the group to “the projects.” When the cab arrived, Simpson sat in the front seat and Henderson either sat in the back passenger or back driver’s side of the car, while Burns sat in the other back seat. Burns testified at trial that Henderson sat behind the driver. Henderson gave a statement to the police that he was sitting behind the driver, but then testified at trial that Burns actually sat behind the driver while he, Henderson, sat in the back passenger seat. Simpson directed the cab driver, Paul Hill, to take them to 538-Grove Street, a house where Simpson used to live but which was unoccupied at that time. They pulled into the driveway and, according to eyewitnesses, several shots rang out as two of the occupants exited the car while the third, who was in the back driver’s-side seat, leaned over and shot Hill. All three passengers fled.

The police questioned Henderson on December 20, 1999, after his aunt took him to the police station to speak to the police after the shooting. Henderson signed a waiver-of-rights form, and the police took his statement and typed it for his signature. In the statement, Henderson indicated that he was in the back seat behind the driver when they pulled into the driveway at 538 Grove Street, and that he heard three shots and ran from the car. In this statement, Henderson did not indicate that any of the three boys had a gun or that Simpson had retriéved the gun from his house to sell. Henderson was soon arrested by the police and charged with first-degree murder.

A jury trial began on May 21, 2001. During trial, Burns, who was thirteen years old at the time of the trial, testified that when the group was at Wendy’s, he saw Simpson hand Henderson something as they talked about “hittin’ a lick.” When they got in the cab, Burns was in the back passenger seat, and he testified that he saw Henderson, who was in the back driver’s seat, pull out a gun and set it in his lap. When they arrived at Grove Street, Burns and Simpson got out of the car and walked up to the vacant house, and Henderson stayed in the car. Burns testified that he then heard four or five gunshots, and Henderson ran to the house, and the group ran to the woods. Burns testified that Simpson asked Henderson whether he killed the driver, and Henderson stated, “I think so.” Simpson and Henderson switched jackets, and Simpson hid the gun. Burns told his parents about the incident when he got home, and they went to the police.

The prosecution questioned other witnesses who saw the events on Grove Street where they lived. Bertha Patricia Barron testified that she saw the cab pull into the driveway of the vacant house, and she noted that she thought that to be unusual because no one lived there. She stated she then heard about four gunshots, and she ran into her house until the police came. She testified that she saw three people in the car, and the passenger in the back driver’s seat was the person who shot the driver, and that this person wore a jacket with a big star on the back, much like a Dallas Cowboys jacket. Witness ShaquiUa Jones testified that she saw three boys run from the car, and that one of those boys was Simpson. She testified that they were taking off clothes as they ran.

During the defense’s case, Simpson’s stepfather, Dennis White, testified that days after the shooting, he discovered that his gun and gun clip were missing. Upon questioning Simpson and finding out where Simpson had taken the gun, White and Simpson retrieved it, and White buried it in their backyard. Henderson then testified on his own behalf. He stated that Simpson never showed him the gun although he knew Simpson had it, and that he was just going along for the ride. Henderson testified at trial, unlike his statement to the police, that he rode in the back passenger-side seat. He testified that he only gave the police the incorrect statement about his location in the car because he was scared at the time. He further testified that he did not switch coats with Simpson, and that he did not know who fired the shots.

Following the testimony, jury instructions were proposed by counsel. The case was sent to the jury, and the jury returned with a verdict of guilty on the first-degree murder charge. The trial court then sentenced Henderson to life in prison.

Following trial, defense counsel made a motion for new trial based on juror misconduct. Specifically, defense counsel argued that three jurors slept periodically throughout the trial, and that this violated Henderson’s constitutional rights to a fair trial. The defense presented testimony from Henderson’s sister, Erika Henderson, and his mother, Bobbie Conway, that these jurors fell asleep. Neither woman, however, told defense counsel or the court about the alleged conduct until after trial. The trial court denied the motion for new trial. Henderson filed his notice of appeal on June 4, 2001.

Although Henderson asserts eight points on appeal, only two of those issues are asserted as a basis for reversal. Henderson concedes that the other six issues have no merit. As such, this court will only address Henderson’s two meritorious issues in this appeal.

I. Motion for New Trial

In Henderson’s first point for reversal, he argues that the trial court erred in denying his motion for new trial, which alleged that as many as three jurors dozed off and on during the trial. To support his contention, Henderson offered affidavits and testimony from his sister, Erika Henderson, and his mother, Bobbie Conway, that these jurors slept or dozed periodically throughout trial. Both indicated that they did not notify Henderson’s attorney or the trial court about this problem until after the trial was over. Henderson argues that this juror misconduct presents a reasonable possibility of prejudice in that twenty-five percent of the jurors were not paying attention at various times during trial. Furthermore, Henderson asserts that defense counsel had no knowledge of this until after trial and, therefore, could not request an admonition by the court to cure the prejudice.

The State counters this assertion by arguing that the trial court did not abuse its discretion in denying the motion for new trial because the defense did not make an affirmative showing that the defense was unaware of this juror misconduct during the trial. The State argues that while the defense filed the affidavits and presented testimony regarding the juror misconduct, neither affidavit addressed whether the defense knew of any misconduct. The State notes that the affidavits indicated that “several courtroom spectators” observed the sleeping jurors. The State argues, however, that if the misconduct had been that apparent, then the defense presumably would have noticed as well, and the burden is on the defense to show that it was unaware of the misconduct. The State concludes that offering affidavits and testimony from spectators that they did not tell the defense of the misconduct does not address whether the defense was aware of the misconduct, and Henderson’s assertion that he did not see the misconduct also does not address whether his counsel observed it.

The decision on whether to grant or deny a motion for new trial lies within the sound discretion of the trial court. State v. Cherry, 341 Ark. 924, 20 S.W.3d 354 (2000); Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997). We will reverse a trial court’s order granting or denying a motion for a new trial only if there is a manifest abuse of discretion. Id. A trial court’s factual determination on a motion for a new trial will not be reversed unless clearly erroneous. Clayton v. State, 321 Ark. 602, 906 S.W.2d 290 (1995). This court has repeatedly held that the issue of witness credibility is for the trial judge to weigh and assess. Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998); Myers v. State, 333 Ark. 706, 972 S.W.2d 227 (1998). Accordingly, this court will defer to the superior position of the trial court to evaluate the credibility of witnesses. Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997).

This court requires that “a claim of jury misconduct raised for the first time in a motion for new trial be accompanied by an afíirmátive showing that the defense was unaware of the misconduct until after the trial.” Carter v. State, 324 Ark. 395, 921 S.W.2d 924 (1996) (quoting Oliver v. State, 322 Ark. 8, 20, 907 S.W.2d 706, 713 (1995)); Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989); Hendrix v. State, 298 Ark. 568, 768 S.W.2d 546 (1989). The burden of proof in establishing jury misconduct is on the moving party. Owens, supra; Hendrix, supra. Following allegations of juror misconduct, the moving party bears the burden of proving that a reasonable possibility of prejudice resulted from any such juror misconduct. State v. Cherry, 341 Ark. 924, 20 S.W.3d 354 (2000); Dillard v. State, 313 Ark. 439, 855 S.W.2d 909 (1993); Larimore v. State, 309 Ark. 414, 833 S.W.2d 358 (1992). We will not presume prejudice in such situations. Id. The moving party must show that the alleged misconduct prejudiced his chances for a fair trial and that he was unaware of the bias until after the trial. Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994). Whether unfair prejudice occurred is a matter for the sound discretion of the trial court. Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990). Statutory support for granting a new trial is found in Ark. Code Ann. §16-89-130(c)(7) (1987), which states in pertinent part:

(c) The court in which a trial is had upon an issue of fact may grant a new trial when a verdict is rendered against the defendant by which his substantial rights have been prejudiced, upon his motion, in the following cases:
(7) Where, from the misconduct of the jury, or from any other cause, the court is of [the] opinion that the defendant has not received a fair and impartial trial.

In reviewing these standards, we conclude that Henderson failed to meet the requirements justifying a new trial for juror misconduct. As noted, to succeed- on a motion for new trial based on juror misconduct, the party requesting the new trial carries the burden to make an “affirmative showing” that the defense was unaware of the misconduct until after trial and that this misconduct prejudiced his chances for a fair trial.

Henderson failed to establish even the initial element of an “affirmative showing.” Henderson makes no showing in his motion, supporting affidavits, or in testimony from trial that the defense was unaware that any juror was sleeping. The affidavits and trial testimony from Henderson’s mother and sister state only that they were aware of up to three sleeping jurors, and that they did not tell Henderson’s counsel about their concerns. Merely fifing the motion does not qualify as an “affirmative showing” that the defense was unaware of the misconduct at trial. See Owens, supra. In Owens, the defense filed a motion for new trial claiming juror misconduct after a juror allegedly spoke to others about the case and the defendant’s possible involvement in the crime despite an admonition from the trial court after being selected to be on the jury but before the trial started. Although the defense presented testimony from a witness about the alleged incident, we noted that the defense failed to affirmatively show that they did not know about the alleged misconduct, and that we, therefore, were “unaware” of when the appellant first learned of the remarks attributed to the juror. Owens, 300 Ark. at 78-79. We explained in Owens the importance of this affirmative showing by the defense, stating, “To allow otherwise would permit a defendant, privy to asserted jury misconduct during the trial, to await the outcome of the trial before investigating or pursuing such allegations further.” Owen, 300 Ark. at 78. In further support of the requirement of an “affirmative showing” of lack of knowledge of the misconduct at trial, this court in Oliver, supra, noted that even allegations in the motion itself, without evidence supporting the affidavit, will not suffice for the court to determine whether error occurred. Rather, actual evidence is necessary to show that the defense was unaware at trial of the misconduct. Based on this lack of evidence, we cannot say that the trial court abused its discretion in denying Henderson’s motion for new trial.

II. Jury Instructions

In his second point for reversal, Henderson argues that the trial court erred in refusing to give his proffered accomplice liability jury instructions. He argues that he offered a modified instruction of AMCI2d 404 regarding a defendant’s “mere presence” without participation at the scene of the crime, and that the trial court should have given this instruction to the jury. He also asserts that his two other proposed modified instructions about accomplice liability should have been read to the jury, and that it was reversible error that none of the instructions were given.

The State responds that the accomplice-liability instruction, which was read to the jury, implicitly instructs the jury that mere presence at a crime scene is not sufficient to sustain a conviction and, therefore, failure to give Henderson’s separate “mere presence” instruction was not reversible error.

This court has repeatedly stated that if there is some evidentiary basis for a jury instruction, giving the same is appropriate. Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998); Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996); Mitchell v. State, 314 Ark. 343, 862 S.W.2d 254 (1993). A party is entitled to an instruction if there is sufficient evidence to raise a question of fact or if there is any supporting evidence for the instruction. Humphrey v. State, 332 Ark. 398, 966 S.W.2d 213 (1998) (citing Yocum, supra). There is no error in refusing to give a jury instruction where there is no basis in evidence to support the giving of the instruction. Id. Our law is well settled that, when a trial court determines that the jury be instructed on an issue, the model criminal instructions shall be used unless the trial court concludes it does not accurately state the law. Webb v. State, 326 Ark. 878, 935 S.W.2d 250 (1996); Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (1994). In determining if the trial court erred in refusing an instruction in a criminal trial, the test is whether the omission infects the entire trial such that the resulting conviction violates due process. Branstetter v. State, 346 Ark. 62, 57 S.W.3d 105 (2001); Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980). See also, Cox-Hilstrom v. State, 58 Ark. App. 109, 948 S.W.2d 409 (1997).

Henderson presented three instructions dealing with accomplice liability that he wanted the trial court to read to the jury. The first proposed instruction stated:

A person does not commit an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act which he is physically capable of performing.

The second proposed instruction stated:

Our law does not require a person to prevent or attempt to prevent the commission of a criminal offense by another person unless the law imposes a specific legal duty to do so. For instance, the law might require a parent to prevent injury to a child and, thus, failure to prevent injury may constitute a violation of the law. However, there is no general duty placed upon any person to prevent the commission of any offense in the absence of a legal duty to do so.

As the State argued at trial, and as the trial court found, these instructions are not necessary because AMCI2d 401 “Accomplices — Definition and Joint Responsibility” inherently includes this information within the instruction. AMCI2d 401 states:

In this case, the State does not contend that_acted alone in the commission of the offense(s) of_. A person is criminally responsible for the conduct of another person when he is an accomplice in the commission of an offense.
An accomplice is one who directly participates in the commission of an offense or who, with the purpose of promoting or facilitating the commission of an offense:
[Solicits, advises, encourages or coerces the other person to commit the offense;] [or]
[Aids, agrees to aid or attempts to aid the other person in planning or committing the offense.] [or]
[Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so.]
Definition
“Purpose.” —■ A person acts with “purpose” with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.

The model instruction has its genesis in Ark. Code Ann. § 5-2-403(a) (Repl. 1997). Except for the last clause “Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so,” the trial court read this instruction to the jury and referred them to the previously-read instruction defining “purpose.” Therefore, the model instruction read to the jury generally encompassed the elements proposed by Henderson’s first proposed instruction above, as Henderson’s proposed instruction is a basic statement regarding “purposeful” and “knowing” conduct.

As for Henderson’s second proffered instruction noted above, the court did not read the third clause of AMCI2d 401 dealing with the “legal duty,” which then raises the issue as to whether there was any evidence to support giving this section of AMCI2d 401. Here, there was no reason for the court to give the last clause of AMCI2d 401 or Henderson’s second proposed instruction because Henderson was not charged with failing to prevent an offense that he had a duty to prevent. Rather, he was charged with actually participating in the crime itself. In fact, Henderson testified that he did not know from where the shots came as he exited the car; thus, by his own testimony, he could not have been under a legal duty to prevent the crime he claimed he knew nothing about. Therefore, the trial court did not err in refusing to read the last section of AMIC2d 401 or Henderson’s second proposed instruction.

Finally, Henderson’s third proffered instruction stated:

Mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make one an accomplice. Therefore, if you find that Samuel L. Henderson was only present while a crime was being committed and did not have a legal duty to act, then he is not an accomplice. If you have a reasonable doubt as to whether Samuel L. Henderson was an accomplice or merely present at the commission of an offense, then you will acquit the Defendant.

This instruction on “mere presence” tracks but is not identical to the model instruction in AMCI2d 404. Because it is not the model instruction, the trial court did not err in refusing to give this instruction. Webb, supra; Moore, supra.

Furthermore, when Henderson requested this instruction, the prosecutor argued and the trial court found that this instruction was unnecessary because our case law indicates that AMCI2d 401 and 403 implicitly include that “mere presence” or acquiescence at the crime scene is not sufficient for a conviction. This is a correct statement of our case law. See Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999); Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998); Calloway v. State, 330 Ark. 143, 953 S.W.2d 571 (1997); Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997); Webb v. State, 326 Ark. 878, 935 S.W.2d 250 (1996). In Smith, for example, this court reiterated its earlier position in Williams, supra, and Webb, supra, declining the opportunity to alter AMCI2d 401 to reflect the legal principle that a person’s mere presence is not enough to establish accomplice liability because AMCI2d 401 “accurately and completely reflects the law of accomplice liability.” Smith, 334 Ark. at 198.

However, in Jones, supra, this court was again faced with a proffered “mere presence” instruction. We stated in Jones that the “mere presence” instruction

was not a model instruction at the time of the trial although a similar instruction was apparently adopted by this court’s Criminal Instruction Committee and sent to the Michie Publishing Company in August 1997, just after the trial but the same month of the trial. This court has held in the past that a trial court committed no error in refusing to instruct the jury with the “mere presence” language. See Calloway v. State, 330 Ark. 143, 953 S.W.2d 571 (1997); Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997); Webb v. State, 326 Ark. 878, 935 S.W.2d 250 (1996). We observed in those cases that it is implicit in the accomplice liability instruction, which states that a party must solicit, advise, encourage, coerce, aid, agree to aid, or attempt to aid the principal to commit the crime, that mere presence or acquiescence at the crime scene is not enough. Accordingly, even though the Criminal Instruction Committee has now adopted a “mere presence” instruction, our case law is clear that refusal to instruct on mere presence is not reversible error.

Jones, 336 Ark. at 205-206. We noted that although the trial court in Jones did not have the benefit of the newly created AMCI2d 404 “mere presence” instruction when making its decision to deny the proffered “mere presence” instruction, failure to instruct on “mere presence” is not reversible error because prior case law indicated that that element is inherent in AMCI2d 401 and 403. According to our prior case law, AMCI2d 401, which was read to the jury, implicitly includes the “mere presence” element.

In this case, failure to give AMCI2d 404 when requested cannot be error here because AMCI2d 401 and AMCI2d 403 were given. As such, the test for reversing on this issue — whether the omission infects the entire trial such that the resulting conviction violates due process — cannot be satisfied here. See Branstetter, supra; Conley, supra.

III. Rule 4-3(h)

In accordance with Rule 4-3 (h) of the Arkansas Supreme Court Rules, the record has been reviewed for adverse rulings objected to by Appellant but not argued on appeal, and no reversible errors were found.

Affirmed.

Imber, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    Jason Nugene TURNER v. STATE of Arkansas
    CR 01-761
    80 S.W.3d 382
    Supreme Court of Arkansas
    Opinion delivered July 5, 2002
    [Petition for rehearing denied September 5, 2002.]

      Henry & Cullen, L.L.P., by: Mark Murphy Henry, for appellant.

      Mark Pryor, Att’y Gen., by: Clayton K. Hodges, Ass’t Att’y Gen., for appellee.

       Imber, J., not participating.

   Jim Hannah, Justice.

Appellant Jason Nugene Turner appeals his convictions for capital murder and aggravated robbery from Calhoun County Circuit Court in connection with the death of Henry Lee Tatum. Following the convictions, the court, upon agreement of the parties, imposed a sentence of life without parole for capital murder and ten years for aggravated robbery. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). On appeal, Turner asserts he was denied his right to a speedy trial, that his counsel was ineffective, and that there was insufficient evidence to support the convictions. He contends that the trial court erred in denying his motion for a directed verdict. We find no error and affirm.

Facts

On August 7, 1999, Henry Lee Tatum died from a single gunshot wound to the upper-right chest. According to the testimony of Naomi Lee Hall, Tatum came into Sambo’s Liquor Store in Hampton that Saturday night as he generally did to help them load the walk-in cooler. Hall further testified that at about 9:25 p.m., Tatum was seated in a chair in the storage room, and she was in the back room when she heard an argument. Hall testified that this caused her to go back to the storage room, where she saw an intruder with a silver pistol. According to Hall, the intruder stuck his hands through some shelves and shot Tatum, then came around to Tatum and demanded that Tatum “open the safe.” Hall further testified that Tatum got up and began to walk to the register when he grabbed his right side and fell to the floor. Hall also testified that the intruder did not leave, but rather he went into the storage room. When she last saw him, he was pointing his gun at the bathroom doorknob. Hall left the building and called police. Tatum was later pronounced dead at the scene.

According to Hall’s testimony, the intruder was wearing tennis shoes, ‘cargo pants, blue jean type,’ a denim shirt, and had a stocking over the upper half of his face. Deloris Ann Thompson, who also worked at Sambo’s Liquor, testified, “I saw a black guy with short blue jeans on, no shirt, a black do-rag over his head and a gun.” Thompson also testified that the do-rag covered the intruder’s whole face and that the pistol was silver. Latisha Tatum testified that she knew Turner, that they had “practically” grown up together, and that on the day Tatum was killed she saw Turner in Hampton wearing short blue jeans, a white t-shirt, and a black do-rag. Veronica Thomas testified she had known Turner “mostly all my life,” and that she saw him that day at her house at about 4:00 p.m. wearing a white tank top, a do-rag, and light blue denim shorts.

Initially, Hall identified another person as the intruder, but later indicated she was not sure. Turner was then identified. According to the testimony of Bernard Moore, Turner was present at his house the evening of August 7, 1999, playing dominoes. Moore fives about 100 yards from Sambo’s Liquor. Moore testified that Turner arrived about 7:00 p.m., and that later that evening, Turner left and was gone for about forty-five minutes. Moore further testified that upon his return, he was sweating as if he had been running. Moore also testified that Turner was wearing dark blue or black shorts and a blue bandana on his head. Further, according to Moore, Turner had on a white shirt when he left, but had no shirt on when he returned. Moore finally testified that when Turner got up from his seat after returning, he heard something fall, and saw that a gun clip had apparently fallen from Turner’s pocket.

Chris Williams testified that he was present at the dominoes game and that Turner left for a time at about 9:30 p.m. Kenneth Stephens testified that on August 7, 1999, he was catering a party at Canes Park and saw Turner there about 6:30 p.m. He testified that Turner was drunk and was looking for Henry Lee Tatum. Kenneth further testified that he heard shots fired at the party after Turner arrived. Kenneth’s son, Clifford Stephens, testified that he saw Turner fire the shots and that he was shooting a silver gun in the air. Kenneth Stephens also testified that Turner came back to the party about 11:00 p.m., and that he gave Turner a ride home about 2:00 a.m. Kenneth testified that during the trip, he notice blood on Turner’s clothing and asked Turner what it was, and that Turner replied it was Tatum’s blood. Kenneth also testified that Turner told him Tatum had been shot that night and that while giving Turner a ride home, Turner fell asleep and a pistol slipped out of his pocket. Kenneth identified the pistol in court as the pistol he saw that night.

Angie Thomas, Turner’s girlfriend, testified at trial that the pistol was hers. She further testified that in the early morning of August 8th, Turner arrived at their house before she did, and that Kenneth Stephens came by where she and her cousins were and told them Tatum had been killed. She then testified that she went home and asked Turner who killed Tatum, and he said, “I did.” She testified she then asked him with what he had killed Tatum, and Turner told her he had used her gun. She also testified that she saw Turner’s white shirt and saw red spots on it.

Although projectiles and shell casings were obtained, no match to Thomas’s gun were made. Rick McKelvey, of the Arkansas State Police, testified that in his interview with Turner, Turner admitted being the one that went into the liquor store. Turner’s statement provides in pertinent part:

I did it I’m sorry. I didn’t intend to shoot nobody. . .1 was the only one who went to the liquor store. I had on stonewash shorts. I didn’t have no shirt. I had a nylon do-rag type stocking over my face. . .Henry Lee was sitting there and I asked him to open the register. I was holding the gun on him and turned to look at the back where I heard a noise, the gun just went off. I didn’t mean to shoot nobody.

This statement was read by Officer McKelvey without objection. Turner objected to admission of the statement because it was not written by Turner, but the objection was overruled. Turner does not argue that the statement was received into evidence in error.

Speedy Trial

We first address Turner’s speedy-trial argument. The State initially argues that this issue is precluded on a procedural basis because Turner failed to object at the July 17 hearing when the court excluded the time from July 17 to November 1 for purposes of calculation of twelve months from the date of arrest. We note that there is no transcript of the hearing. We also note that we have nothing to rely upon but representations of the State. The State is thus arguing matters outside the record. This court does not take notice of gratuitous assertions based on matters not in the record. Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990).

We therefore proceed to analyze the speedy trial issue. Under Ark. R. Crim. P. 28.1, an accused must be brought to trial within twelve months unless a necessary delay occurs as authorized in Ark. R. Crim. P. 28.3. Gwin v. State, 340 Ark. 302, 9 S.W.3d 501 (2000). This means the accused must be tried within twelve months of the day the charges were filed, except that if prior to that time the defendant has been continuously held in custody, or has been lawfully at liberty, the time for trial commences running from the date of arrest. Ark. R. Crim. P. 28.2. Once a defendant shows his trial took place outside the applicable speedy-trial period, the State bears the burden of showing that the delay was the result of the defendant’s conduct or otherwise justified. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000); Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988). If a defendant is not brought to trial within the requisite time, Ark. R. Crim. P. 30.1 provides that the defendant will be discharged, and such discharge is an absolute bar to prosecution of the same offense and any other offense required to be joined with that speedy-trial violation. Ferguson, supra.

Turner was arrested on August 19, 1999. His trial commenced on March 27, 2001. This was 586 days after his arrest. Turner thus made a prima facie showing of a speedy-trial violation, and the State was then left to show that at least 220 days were excludable. Id.

There are three periods of exclusion attributed to Turner that we must consider. First, on December 20, 1999, Turner filed a number of pretrial motions. According to the court’s docket, those motions were heard and the decisions were rendered on March 20, 2000. The excluded period contemplated by the rule begins at the time the pretrial motion is made and includes those periods of delay attributable to the defendant until. the motion is heard by the court and not more than thirty days thereafter. Gwin, supra. The total days from December 20, 1999, until the decisions were rendered on March 20, 2000, is 91 days. The docket sheet reflects that the motions were heard on March 20, 2000, but does not set out the days to be excluded against speedy trial. A trial court should enter written orders or make docket notations specifying the reasons for the delays and the specific dates or number of days to be excluded. Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991). There was no docket entry or written order as required by the language of Ark. R. Crim. P. 28.3. However, a trial court’s failure to comply with Ark. R. Crim. P. 28.3 (i) does not result in automatic reversal. Hubbard, supra. As we stated in Carmargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001), this court has consistently held that where a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of Rule 28.3. See also, Kennedy v. State, 297 Ark. 488, 763 S.W.2d 648 (1989).

No argument is made that any of the delay between December 20, 1999, and March 20, 2000, is attributable to the State. We therefore conclude that a total of 91 days may be excluded based upon hearings on pretrial motions under Rule 28.3.

Second, Turner moved to have his appointed counsel relieved so that he could retain private counsel. This motion was granted on November 14, 2000, and by that order, the court continued the case “until the defendant’s retained counsel, the State of Arkansas and the Court can agree on a new trial date, and their shall be an excluded speedy trial period of time from this date until the new trial date is determined.” The trial court’s docket shows Turner appeared in court on November 20, 2000, and at that time still had not retained private counsel. The trial court noted in the docket that the trial would be reset for March 19, 2001, and that the period from November 20, 2000 through March 19, 2001, would be excluded for purposes of speedy trial. The period from November 14 to November 20 is not mentioned in the docket as excluded, but for the same reasons as stated above, this time is added because the record shows it was time granted to Turner to obtain counsel. The record reflects that on December 18, 2000, Turner again appeared in court and still did not have private counsel. At this time, Turner requested that counsel be appointed, and this was done. The date for trial remained March 19, 2002, and the time between November 14, 2000, until March 19, 2001, was properly excluded for purposes of calculating whether his right to a speedy trial had been violated. The period from November 14, 2000, to March 19, 2001, totals 126 days.

The total days excluded between hearings on pretrial motions and continuances is 217 days, or four days short of the amount needed to bring the days to trial down to twelve months. One additional period of exclusion is asserted, that of time consumed in obtaining a mental evaluation. That is an excludable period under Rule 28.3. The period of delay caused by a mental exam requested by a defendant is to be excluded from calculations on speedy trial. Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998). The trial court’s docket shows that the order for the mental evaluation was entered on July 17, 2000. The trial court excluded the period from July 17 through November 1, 2000. Turner argues in his brief that this was in error because only sixty-four days were required. This calculation was based upon a statement on September 18, 2000, that the parties were ready for trial. The days between July 17 and September 18 amount to sixty-four. However, in his reply brief, Turner argues that this sum is incorrect because the mental evaluation was provided to the court by a transmittal letter dated July 31, 2000. It was not made part of the record at that time, but rather the record was supplemented to add the report following a motion to correct the record.

Turner argues that only the period from July 17 to July 31 may be counted. It is not clear this argument was considered by the trial court below. However, it is of no moment. Even if we were to agree with Turner, the mental evaluation still consumed more days than are required to bring his trial within twelve months. Only four days were needed to hold that the trial took place within twelve months, and the mental evaluation consumed fourteen days at the least. The trial court is affirmed on this issue.

Sufficiency of the Evidence

Turner challenges the denial of his motion for a directed verdict. He asserts the jury was left to speculate as to who committed the murder given witness Hall’s initial identification of one person as the murderer and then, upon a phone call from that person’s brother, she changed and accused Turner.

It is well settled that a motion for a directed verdict is a challenge to the sufficiency of the evidence. E.g., Smith v. State, 346 Ark. 48, 55 S.W.3d 251 (2001) (citing Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995)). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Smith, supra. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Id.; Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002).

The credibility of witnesses is an issue for the jury and not the court. Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. We will disturb the jury’s determination only if the evidence did not meet the required standards, thereby leaving the jury to speculation and conjecture in reaching its verdict. Id. See also, Atkinson, supra.

In this case, Turner as much as admitted to Kenneth Stephens he was involved in the death of Tatum. He confessed to Angie Thomas that he was the killer. He admitted to Officer McKelvey and put in his statement that he was the killer. Further, the pistol seized from his girlfriend’s house where he lived was consistent with the description witnesses gave of the weapon. It was also the same caliber. He admitted he was wearing shorts, no shirt, and a do-rag at the time of the killing. This was consistent with testimony of what the killer was wearing, and consistent with witnesses’ testimony as to what they saw him wearing that day. According to Moore, Turner left his home about the time the-murder was committed, a home that was only 100 yards from Sambo’s Liquor Store. Again, according to Moore, Turner was sweating when he returned, seeming as if he had run. Blood was found on Turner’s shirt.

The jury was properly allowed to consider the complained-of testimony of Hall and decide to believe or disbelieve her testimony. The jury was not left to speculation or conjecture. That Hall decided her initial identification was in error was substantiated by the sizable body of evidence noted above. There was more than sufficient evidence of Turner’s guilt to compel a conclusion. We thus affirm the trial court’s denial of the motion for a directed verdict.

Ineffective Assistance of Counsel

Turner alleges that his counsel’s failure to “advance and preserve the speedy trial challenge is egregiously deficient in the context of acceptable criminal trial practices and procedures.” This argument is made in the alternative to the initial argument that there is a speedy-trial violation. Turner cites the following colloquy from the very beginning of trial on March 27, 2001:

By Ms. Streett: We need to get on the record the ruling on the speedy-trial motion.
RULING BY THE COURT
By Judge Chandler: The court has carefully reviewed the record in this case as well as the pleadings. The Court is fully satisfied that the State is within the twelve month speedy trial limitations. The motion, which was filed pro se by the Defendant, will be denied.

Thus, it is obvious a ruling on the motion was given by the court. Turner’s brief alludes to the argument of the State that there may have been a lack of a contemporaneous objection of some form, or that, in other words, there was some calculation of time in which the trial court was in error. But as with the State’s procedural argument, no transcript is provided and none is found in the record. No argument is made that there was some evidence that should have been made a part of the record that was not. The trial court ruled, and Turner was free to challenge the trial court’s calculation of the speedy-trial twelve-month period as he has done, and to which the State has raised no objection. There is no showing that counsel’s representation fell below an objective standard of reasonableness and that but for counsel’s errors the result of the trial would have been different. This is the required proof to receive relief. Kemp v. State, 347 Ark. 52, 60 S.W.2d 404 (2001). See also, Strickland v. Washington, 466 U.S. 668 (1984). There is no merit to this argument.

Rule 4-3 (h)

The transcript of the record in this case has been reviewed pursuant to Ark. Sup. Ct. R. 4-3(h). Rule 4-3(h) requires, that in cases of sentences of life imprisonment or death, we review all prejudicial errors in accordance with Ark. Code Ann. § 16 — 91— 113(a) (1987). None has been found.

Affirmed.

Imber, J., not participating.


author: Per Curiam.

text:
    Teresa BALLARD; Kenisha Bryant; Cheryl King; and Crystal Luebbers v. ADVANCE AMERICA, Cash Advance Centers of Arkansas, Inc.
    01-1182
    80 S.W.3d 374
    Supreme Court of Arkansas
    Opinion delivered July 5, 2002

      The Nixon Law Firm, by: David G. Nixon and Paige E. Young, for appellants.
    No response.
   Per Curiam.

The Motion to Amend Appellants’ Petition for Rehearing is denied pursuant to the recent decision of this court in Ballard, et al. v. Advance America, 349 Ark. 545, 79 S.W.3d 835 (2002), Supreme Court case number 01-1190.

Motion denied.

Glaze, J., not participating.


text:
    Jerry L. EDMOND v. STATE of Arkansas
    CR 01-1050
    80 S.W.3d 755
    Supreme Court of Arkansas
    Opinion delivered July 5, 2002

      David Mark Gunter, for appellant.
    No response.
   Per Curiam.

We ordered David Mark Gunter, counsel for the appellant Jerry L. Edmond, to appear Thursday, June 27, 2002, to show cause why he should not be held in contempt for failing to file the appellant’s brief by June 2, 2002, as previously ordered by this court. Mr. Gunter appeared, stating he had filed Edmond’s brief that morning. The brief in this case was originally due November 7, 2001; however, Mr. Gunter filed several motions for an extension of time, which were granted. On May 1, 2002, this court granted a final extension of time within which to file the brief. Mr. Gunter was to file the brief by June 2, 2002. However, on Monday, June 3, 2002, Mr. Gunter filed yet another motion for an extension of time within which to file the brief even though the prior extension was a final extension. By our per curiam order dated June 20, 2002, Mr. Gunter was ordered to file the brief immediately. Mr. Gunter tendered the brief on June 27, 2002. There was a technical problem with the brief, and the court clerk granted Mr. Gunter seven days to correct the problem and file the brief.

On June 27, 2002, Mr. Gunter appeared before this court as ordered and pled guilty to contempt. He offered no reason in mitigation. This court hereby finds Mr. Gunter in wilful contempt of this court and orders him to pay a fine of $250.00 to the clerk of this court.


text:
    Billy Mack NICHOLS, Jr. v. Larry NORRIS, Director, Arkansas Department of Correction, et al.

    01-1030
    80 S.W.3d 331
    Supreme Court of Arkansas
    Opinion delivered July 5, 2002

      Appellant, pro se.

      Mark Pryor, Att’y Gen., by: Ryan P. Blue, Ass’t Att’y Gen., for appellees.
   Per Curiam.

Appellant, an inmate in the Arkansas Department of Correction (ADC), filed a motion for declaratory judgment in the Circuit Court of Jefferson County as a result of his being assaulted by another inmate at the Cummins Unit. Appellant alleged a violation of his rights guaranteed by the Eighth Amendment to the United States Constitution, and filed the motion against various employees of the ADC. The circuit court dismissed the motion for lack of proper venue pursuant to Ark. R. Civ. P. 12(b)(3) and held that venue is proper in Pulaski County as the case involves an inmate versus a state officer.

At the time appellant filed his motion, all actions against the state, state boards, state commissioners, or state officers concerning the performance of their official acts were to be brought in the county in which the seat of government is situated. See Ark. Code Ann. § 16-60-103(3) (Michie 1987). Article 1 of the Arkansas Constitution states that the “seat of government of the State of Arkansas shall be and remain at Little Rock, where it is now established.” Therefore, because Little Rock is in Pulaski County, a suit against state officers was to be brought in Pulaski County. This statute, however, was recently amended to read that actions against state officers may be brought either in Pulaski County or any other county under the venue laws of this state. See Ark. Code Ann. § 16-60-103(3) (Supp. 2001).

Venue is the geographic area where an action may be brought, such as a county. Arkansas Game and Fish v. Harkey, 345 Ark. 279, 45 S.W.3d 829 (2001); Davis v. Reed, 316 Ark. 575, 873 S.W.2d 524 (1994). Arkansas Code Annotated § 16 — 106— 101(d) provides that actions against a state officer shall be brought in the county where the defendant resides. We take judicial notice of the fact that the ADC’s administrative headquarters is in Pine Bluff, which is located in Jefferson County. As a result, pursuant to the new legislation, venue in Jefferson County became proper in this action when the statute went into effect. See Ark. Code. Ann. § 16-60-103(3).

Arkansas Code Annotated § 16-60-103(3) went into effect on August 13, 2001. The present matter was dismissed by the circuit court on August 22, 2001; therefore, the amended statute was in effect when the circuit court entered the amended order of dismissal. While legislation is generally held to be prospective, this rule does not apply to procedural legislation. Aka v. Jefferson Hospital Ass’n., Inc., 344 Ark. 627, 42 S.W.3d 508 (2001). Thus, venue was proper in Jefferson County at the time of the amended order. This matter is reversed and remanded to allow it to be decided on its merits in the Circuit Court of Jefferson County.

Reversed and remanded.


text:
    Clarence J. WORTH, et al. v. Honorable Tom J. KEITH
    01-1409
    79 S.W.3d 387
    Supreme Court of Arkansas
    Opinion delivered July 5, 2002

      The Evans Law Firm, P.A., by: Marshall Dale Evans and Stephanie Dzur; and Hirsch Law Firm, P.A., by: E. Kent Hirsch, for petitioners.
    No response.
   Per Curiam.

Clarence J. Worth, et al, petition this court for a writ of mandamus directing the trial judge to recuse from this' case filed in Benton County. The trial court denied petitioners’ motion to recuse. This case involves alleged an illegal exaction. Petitioners allege that as a property owner in the affected county and school districts and as a judge with certain family members who are property owners in the affected county and school districts, the trial judge is disqualified because he and his family members have an interest in the outcome of this case.

Petitioners’ brief in this case is the only brief that was presented to this court. The record in this case contains only the record on the motion to recuse. Further briefing is required before this court can decide the merits of this petition. We therefore order that this case be rebriefed to include these additional issues:

1. Whether petitioners waived any alleged disqualification based upon the passage of time;
2. Whether petitioners waived any alleged disqualification based upon acquiescing in allowing the allegedly disqualified judge to preside over the case, including hearings, motions, and so on, without moving for recusal until an adverse ruling was made;
3. Whether the trial judge, having a general interest as a property owner and relative of other property owners possibly affected by the case, had a personal or pecuniary interest of the type that disqualifies a judge;
4. Whether the fact that petitioners complain of bias in then-favor as the basis for recusal plays a role in analysis; and
5. Whether the trial judge’s offer to opt out of the class plays any role in this analysis.

To facilitate our consideration of the merits of the appeal, we direct the Attorney General to prepare and file a brief. Petitioners may file an amended brief and reply if they wish to do so. Defendants below may file a brief if they wish to do so. The Clerk will set a briefing schedule.

It is so ordered.


text:
    James BIBBS v. STATE of Arkansas
    CR 02-684
    80 S.W.3d 755
    Supreme Court of Arkansas
    Opinion delivered July 11, 2002

      McCullough Law Firm, by: R.S. McCullough, for appellant.
    No response.
   Per Curiam.

Appellant, James Bibbs was convicted of criminal attempt to commit fraudulent use of a credit card, theft by receiving, and felony possession of a firearm on December 7, 2001. No timely appeal was filed by Mr. Bibbs or his counsel, J. Blake Hendrix. Mr. Bibbs retained new counsel, R.S. McCullough, after the time to file an appeal had expired.

On June 19, 2002, Mr. McCullough filed a motion for belated appeal. We remand this matter to the trial court to conduct a hearing to determine if Mr. Bibbs had requested his trial counsel, J. Blake Hendrix, to file an appeal, and direct the trial court to make its findings and remand them to this court within thirty days. See Sanders v. State, 329 Ark. 571, 950 S.W.2d 220 (1997).


text:
    Jerry L. JONES v. STATE of Arkansas
    CR 02-635
    82 S.W.3d 827
    Supreme Court of Arkansas
    Opinion delivered July 11, 2002

      Danny P. Rogers, Managing Public Defender, for appellant.
    No response.
   Per Curiam.

Danny P. Rodgers, Managing Public Defender for the Eighth Judicial District, North, and court-appointed counsel for Appellant Jerry L. Jones has filed a motion to be relieved as counsel on appeal and for appointment of substitute counsel. The motion reflects that Mr. Rodgers was originally appointed to represent Appellant by the Hempstead County Circuit Court on a charge of violating the Arkansas Hot Check Law. Appellant pled guilty to the charge in August 2000 and was sentenced to three years’ probation. In March 2002, the State filed a petition to revoke Appellant’s probation. Mr. Rodgers was again appointed to represent Appellant on the revocation. Following a hearing in May 2002, Appellant’s probation was revoked and he was sentenced to six years’ imprisonment. The judgment and commitment order was filed on June 4, 2002, and the notice of appeal was filed on June 6.

Mr. Rodgers now seeks to be relieved as counsel on appeal. He asserts that because he is a full-time public defender with a state-funded secretary, he is ineligible for compensation for work performed regarding this appeal, pursuant to this court’s holdings in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000), and Williams v. State, 347 Ark. 233, 60 S.W.3d 485 (2001) (per curiam). He therefore requests this court to relieve him of his duties on appeal. We grant Mr. Rodgers’s motion to be relieved for good cause shown. See Williams v. State, 347 Ark. 369, 65 S.W.3d 401 (2002) (per curiam). Ms. Lea Ellen Fowler will be substituted as Appellant’s attorney in this matter.

Motion granted.


text:
    Robert James LORD v. STATE of Arkansas
    CR 02-674
    81 S.W.3d 522
    Supreme Court of Arkansas
    Opinion delivered July 11, 2002

      Joe Kelly Hardin, for appellant.
    No response.
   Per Curiam.

Appellant, Robert James Lord, by and through attorney, has filed a motion for rule on clerk. Attorney, Joe Kelly Hardin, states in the motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Tom Glaze, Justice,

text:
    Michael JACKSON v. STATE of Arkansas
    CR 00-1383
    80 S.W.3d 756
    Supreme Court of Arkansas
    Opinion delivered July 11, 2002
    [Dissenting opinion only.]
   Tom Glaze, Justice,

dissenting. This court has repeatedly held that the filing deadlines imposed by Ark. R. Crim. P. 37 are jurisdictional in nature, and that if they are not met, a circuit court lacks jurisdiction to consider a Rule 37 petition. See, e.g., Worthem v. State, 347 Ark. 809, 66 S.W.3d 665 (2002); Hill v. State, 340 Ark. 248, 13 S.W.3d 142 (2000); Hamilton v. State, 323 Ark. 614, 918 S.W.2d 113 (1996); Smith v. State, 321 Ark. 195, 900 S.W.2d 939 (1995); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994); Bailey v. State, 312 Ark. 180, 848 S.W.2d 391 (1993). In Benton v. State, 325 Ark. 246, 925 S.W.2d 401 (1996), this court held that the circuit court was without jurisdiction to consider a petition to reduce sentence when the appellant, Benton, did not file his petition with the circuit clerk, but instead “sent” the petition to the circuit judge, who ruled on it. There, this court wrote the following:

With respect to whether the petition in this case was properly filed, the filing of a petition for postconviction relief with the circuit clerk is critical in that the date of the filing of such a petition determines whether the trial court has jurisdiction to consider the petition on the merits. Delivering an item to a circuit judge is not the equivalent of filing the item with the clerk for the purposes of determining whether an item is timely filed under Rule 31.

Id., 325 Ark. at 248 (emphasis added). See also Hamel v. State, 338 Ark. 769, 1 S.W.3d 434 (1999) (holding that the plain language of Rule 37 is controlling and unambiguous in stating that the petition must be filed in the appropriate circuit court within the time limits specified in the rule).

Here, Jackson’s conviction was affirmed by the court of appeals on November 3, 1999, and the mandate was issued on November 23, 1999. Jackson mailed his Rule 37 petition to both the circuit clerk’s office and the prosecutor’s office on December 1, 1999, but the copy that he mailed to the clerk’s office did not arrive until January 28, 2000, the date reflected on the clerk’s file stamp. This was sixty-seven days after the issuance of the court of appeals’ mandate. Despite the fact that the prosecutor’s office received its copy in a timely fashion and the circuit court proceeded to hear Jackson’s petition on the merits, the above-cited cases make it clear that the circuit court was without jurisdiction to do so. For this reason, I would grant the State’s motion to dismiss the appeal.

Imber, J., joins this dissent.


author: Eakin, J.

text:
    Hershy vs. Clark, Ex., et al.
    1. Tenants in Common: Their contracts for survivor to have the whole property, void.

    A mutual obligation in -writing between two tenants in common of personal and real property, that at the death of either the survivor shall have ail his interest in the common property which he then has, or may have at the time of his death, conveys nothing in presentí, and can not stand as a conveyance, nor be upheld as a mutual covenant. It is revocable at the pleasure of either, and can have no binding force during their joint lives.
    2.- Contracts: Depriving one’s self of all control of property,present and, future, void.

    It is unreasonable and against public policy that one should be allowed by an irrevocable contract, not only to denude himself of all control of all his property which he at the time possesses, but also of all that he should afterwards acquire. Such a contract would not be enforced either in law or equity.

      3. Wills: Joint, void.

    There can be no such thing as a joint will to take effect upon the death of the survivor. A will must take effect at the death of the testator, and not at a time still in the future.
    APPEAL from Sebastian Circuit Court.
    Hon. Jambs Brizzolara, Special Judge.

      Hose, for appellant.
   Eakin, J.

Abram and Aaron Clark were two brothers, both unmarried,who,working together, had, by their joint industry, acquired a large personal and real estate, all of which they held as tenants in common, regardless of whether the legal title had been taken in the name of both, or either. They had a mother, Nancy Clark, and four sisters, to-wit: Susan and Sarah Clark, both unmarried,

Elizabeth Miller, a widow, who died leaving an only son, Abram Miller, and the complainant, Ann Eliza Hershy, whose husband was, at the time of the transaction herein, and still is, alive.

On the eleventh of May, 1850, both brothers, being then residents of Pope county, entered into a mutual obligation in writing under seal. After reciting that they had, mutually and by their joint labor and energy, acquired what property they, and each of them, then held and possessed, they thereby agreed, between .themselves, that the survivor of them should have, hold and possess, all the interest of both parties in the property, real and personal, which they then owned, to the exclusion of all-other persons whatever. “Wherefore,” the instrument proceeds to provide, “the said Abram Clark, for the consideration hereinafter mentioned, hereby gives and grants unto the said Aaron Clark, at the death of the said Abram (should the said Abram die. 'before tbe said Aaron), all his property, real and personal, which he may now have, or which he, the said Abram, may have at the time of his death, to have and to hold the same, to the said Aaron and his heirs forever.’! Aaron, on his part, and in like language, conveyed all his interest in the property, present and prospective, to Abram, in case the latter should survive. The instrument was signed and sealed by the parties, and attested by two witnesses, but not in the form usually adopted in the attestation of wills.

A'bram died about the seventeenth of May, 1851,at which time the brothers owned large amounts of personal prop-ei’ty, consisting of slaves, cash, money at interest, goods ■and choses in action, more than enough, taking one-half, ■to have paid all of Abram’s debts. There were also lands and town lots so heíd in common, in Eort Smith, Sebastian -county, and in the counties of Pope and Yell and Johnson. Aaron had, shortly before, removed to Fort Smith, and resided there. On the death of his brother he took possession of all the joint property, claiming it as his own under the agreement. lie became, and was recognized as, the 'head of the family; and his mother depended upon him wholly for support. She was not very old, and the proof leaves the impression that she was competent to dea-1 for herself with regard to business affairs. She renounced all claim to Abram’s estate; and, in order to carry out the agreement of the brothers, she, at Aaron’s suggestion, and to avoid misunderstanding, conveyed to him, on the eighth •of December, 1851, all her interest in Abram’s estate, real •or personal. She also took out letters of administration on Abram’s estate, but seems never to have acted. The object seems to have been to prevent interference, by other parties, with the transmission of the whole estate to Aaron. In all the matters she acted intelligently, without undue influence, or actual fraud on the part of Aaron.

Aaron died on the fourteenth of November, 1855, leaving a will. By it he gave to his mother and his sister Sarah all his real estate in Sebastian and Pope counties, to hold as tenants in common; also, his personal property of all kinds, subject to his debts. To his sister Elizabeth Miller he gave all his real estate in Perry and Johnson counties; and to complainant, Ann Eliza, all his real estate in Yell county, and other real estate not disposed of. This will was duly probated on the seventeenth of November, 1855 ; and Sol. F. Clark, named as executor therein, received -letters testamentary. He seems to have taken no control of the real estate; and the personal property which came to his-hands was by him, with some trivial exceptions, turned over to said Sarah.

On the twelfth of June, 1860, Sarah and her mother Nancy executed a writing which they described, and intended, as their joint will, duly attested by witnesses. By it they gave to Elizabeth Miller, with some real estate, a negro boy, all their household and kitchen furniture, and a carriage and horses. To the complainant, Ann Eliza, they gave a thousand dollars, and also the remainder iuterest in all the property given to Mrs. Miller after the latter’s death. The balance of their property they bequeathed to trustees for charitable purposes.

It was provided, however, that the T bequests and devises ” should be postponed, as regarded use and enjoyment, until the death of both, with a reservation of right in the survivor to have the sole control, management and disposal of all the property during her life — the balance, undisposed of, at the death of the survivor, being all that was subject to the provisions of the will.

Susan had meanwhile died unmarried; and on the twenty-seventh of November, 1861, Nancy Clark died, leaving as her next of kin her three children — complainant, Elizabeth Miller and Sarah. No notice at the time was taken of the joint will, and in 1870 complainant’s husband, Benjamin E. Hershy, was duly appointed administrator of her estate. On the fourteenth of September of that year, Sarah being still alive, the foregoing joint will was probated by the oath of one of the witnesses.

About that time complainant, Ann Eliza Hershy, filed •this bill against Sol. E. Clark as administrator of the estate of Aaron Clark, her husband, Benjamin E. Hershy, as administrator of Nancy Clark, Sarah Clark and Abram Miller, claiming as one of the heirs of her brother Abram, and also as heir and distributee of her mother Nancy. She seeks an account of the personal effects turned over to Sarah by Sol. E. Clark, the executor of Aaron, and of the personal property of her mother, and of moneys received by Sarah for rents and profits, and for sales of lands; and that her distributive share of said estates be ascertained, and that she have partition, etc., etc.

Sarah Clark answered the bill, insisting upon the good faith of the conveyance from her mother to Aaron of the property she derived from Abram’s estate, and denying all fraud or imposition, or undue influence. Her answer does not controvert the material facts above set forth, and upon them she bases her right to retain the property. She makes her answer a cross-bill to quiet her title. Abram Miller adopts her answer.

The statute of limitations was also relied on by defendants.

The cause was heard upon the pleadings, exhibits and depositions. The court upon hearing, came to the conclusion that the matters set forth in the bill did not entitle complainant either to an account or partition, and dismissed it with costs. She appealed.

ii Common-

tracts'°for oretoUhave the whole voridperty’

2. Con -

Deprivi ng oFproperty future,void

The instrument executed between the brothers conveyed, nothing in presentí. The intention of it is expressly d'e-dared to be that the survivor should have all the interest of' Parti-es in the property. The use of the present tense in the words “ gives ” and “ grants ” is qualified by the-words which follow, “ at the death of said Abram,” in one contingency, and “at the death of said Aaron” in the other. It is not the case of a vested right conveyed by the instrument, reserving a life estate in the grantor. It has been repeatedly held that such an instrument as that last-mentioned will be sustained as a valid deed inter vivos. They were often used in dispositions of slave property, and sustained, so far as the cases have come within our notice, by the courts of all the southern states. But this instrument,, now before us, is not of that character. It professes to convey nothing in presentí, and can not stand as a conveyance nor can it be upheld as a mutual covenant. It is unreasonable, and against public policy, that one should be allowed,. by an irrevocable contract, not only to denude himself of a^ control of all his property, of every nature whatever, which he at the time possesses, but also of all he may after-wards acquire. Such a contract would not be enforced either in law or equity. It is obvious, too, that the brothers did not intend the:r obligations to have that force during their lives.

There is no possible view of this contract which would, give it any binding foi’ce during their joint lives. It was-revocable at pleasure by either.

"Whether, if properly proven, it might not have operated, on the contingency of the death of one of them, as his sepa rate will, is a question which does not arise, and upon which we intimate no opinion. No effort was made to prove or sustain it as the will of Abram, with regard to his share of the joint property.

^oinYvoid

The effort of Nancy Clark and her daughter Sarah, to execute a joint will was nugatory. There can be no such thing as á joint will, to take effect on the death of the survivor. A will must take effect at the death of the testator, and not at a time still in the future. This instrument, so far as regards Nancy Clark’s property, could only have taken effect by its terms, by vesting in Sarah the complete disposition and control of all her mother’s property, without imposing any obligation on Sarah to carry out the benevolent purposes had in view by both; for, with regard to the latter, her part at least was, and remains, ambulatory, and she may defeat the common intention by changing her will. There is no mutuality with regard to the future charitable objects; and the mother can not be supposed to have intended that the remnant of her property, not disposed of by Sarah, should go in any event to the charities in view, without the aid of Sarah’s property also.

This effort illustrates the force of the principles stated by Mr. Jarman in his work on Wills, vol. 7, p. 27. He says: “ A joint or mutual will is said to be unknown to the testamentary law of England. An objection to such an instrument as testamentary, is its irrevocability, for it is of the essence of a will that it is ambulatory, and may be revoked at any time prior to the death of the testator.” And he refers to Clayton v. Liverman, 2 Dev. & Battle, 558, which is directly in point.

The joint instrument between Abram and Aaron Clark, and the joint will of Nancy and Sarah Clark, should both have been disregarded.

The complainant wag, at the death of Abram, and has since continued, a feme-covert. She is not barred by the statute of limitations.

She is entitled, under our statutes of descents and distributions, to a share of the real estate of which her brother Abram died possessed; also, to her proper share of the real and personal property of her sister Susan and her mother. She is entitled to an account, to be taken under the direction of the court, to ascertain these interests.

She must elect, however, as her bill virtually does, to disclaim all rights to the property in question acquired, directly to herself, through the will of her brother Aaron. That will disposes of interests which she claims adversely, and the case for election arises. She must rest on her rights to any of the property in question derived through the statutes of descents and distributions from Abram or her mother or her sister Susan. The property has never been divided, and it must all be done in one suit. The usual remedial proceedings in equity are sufficient.

The court erred in dismissing the bill for want of equity. Reverse, and remand for further proceeding's consistent with law and this opinion.


author: Harrison, J.

text:
    Gilbert et al. vs. Neely, Ad., et al.
    1. Homestead Exemption: Constitution of 1868. Fiduciary debts.

    By the constitution of 1868 the homestead was not, in the lifetime of the debtor, exempted from debts created by him in a fiduciary capacity.
    2. Subrogation : Sureties in guardian’s bond. Parties.

    The sureties in a deceased guardian’s bond who are compelled to pay to the ward his money in the guardian’s hands at the time of his death, may be subrogated to the ward’s remedies against the heirs. and representatives of the deceased guardian, and subject, as he might have done, the guardian’s homestead to the satisfaction of the demand. In a suit for this purpose the widow and heirs of the guardian are necessary parties.
    APPEAL from White Circuit Court in Chancery.
    'Hon. J. N. Cypert, Circuit Judge.

      Turner, for appellant.

    Goody, contra.

   Harrison, J.

Webster Gilbert and William C. Roscopf filed their complaint in equity against Asaph Neely, as administrator of Wyatt Sandford, deceased, Susan G. Sandford, and certain other persons, but what interest they had in the subject of the suit, or why they were made parties, notin any way appearing, their names need not be «mentioned, in which they alleged that Wyatt Sandford was, on the twenty-first day of April, 1866, appointed by the probate court of White county guardian of Vivian W. Weir, a minor, and that the plaintiffs and John B. Humphries became sureties for him in his bond. That he, at the April term, 1870, of the court, filed an account of his guardianship, which was confirmed at the following October term, whereby it was shown he had in his hands $750.54 in money belonging to his ward ; that that was the last account filed by him, and he died about the twenty-ninth day of April, 1872, intestate, leaving a widow— the defendant, Susan G. Sandford — and the defendant, Asaph Neely, had been appointed his administrator. That after the death of said Sandford, James Weir was appointed guardian of said minor;' and that he, as such guardian, exhibited a claim against said Sandford’s estate in favor of his ward for $575.20, money in his hands at the time of his death, which was allowed by the administrator, and at the September term, 1873, classed by the court in the fourth class of claims against the estate.

1. Homestead Exemption:

Const i t n - tion of 1868. Eiduci ar y debts.

That the estate was insolvent and there were no assets to pay them.

That suit was brought in the White circuit court on Sandford’s bond against the plaintiffs and the said Humphries for the recovery from them of the claim, and judgment was, at the July term, 1876, recovered against them for the sum of $667.78, amount of principal and interest thereof, and that the plaintiffs had paid and satisfied the judgment.

And that said Sandford was, at the time of his death, the owner of a homestead in the town of Searcy, which was’ described, not taken into the administration of his estate, but which was subject to the payment of said Vivian W. Weir’s claim. ■

They prayed that they be subrogated to Vivian W. Weir’s right against the homestead, and that it be sold for their exoneration, and to reimburse them the money they had paid.

Whether Sandford left minor children, or who his heirs were, was not shown.

The defendants filed a demurrer to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. ' The court sustained the demurrer and dismissed the complaint.

The plaintiffs appealed.

The constitution of 1868 was in force at the death of Sandford, when his widow and his minor children, if he left any, became vested with their homestead right, and the decision of the case must therefore be governed by'its provisions.

Section 3, of Article XII, of it, was as follows :

“Section 3. Every homestead not exceeding one hundred and sixty acres of land, and the dwelling and appurtenances thereon to be selected by the owner thereof, and not in any town, city or village; or in lieu thereof, at the option of the owner, any lot in a city, town or village, with the dwelling and appurtenances thereon, owned and occupied by any resident of this state, and not exceeding the ■ value of five thousand dollars, shall be exempted from sale on execution, or any other final process from any court' but no property shall be exempt from sa’e for taxes, for-the payment of obligations contracted for the purchase of said premises, for the erection of improvements thereon,, or for labor performed for the owner thereon. Provided, That the benefit of the homestead herein provided for shall not be extended to persons who may be indebted for dues to the state, county, township, school or other trust funds.”'

It is very clear that the homestead was not in the lifetime of the debtor exempt from the debts created by hirm in a fiduciary capacity ; but it is insisted by the appellees, and such we presume was the view taken of it by the court belowT, that section 5, of the same article, upon the death of the debtor, exonerated it in favor of his widow and minor children from all debts whatever.

The section, we think, does not admit of such a construction. All the provisions of the constitution upon the subject must be construed together.

The immediately preceding section, or section 4, exempted, when upon the death of the debtor there weremo children, the homestead, and gave the widow the rents during the time of her widowhood, unless she had a homestead in her own right. Section 5 was as follows :

“ Section 5. The homestead of a family, after the death of the owner thereof, shall be exempt from the payment of his debts, in all eases, during the minority of his children, and also, so long as his widow shall remain unmarried, unless she be the owner of a homestead in her own right,”

2. &UBRO GATION. Sureties in guardian’s bond sub. rogated to ward’s remedies.

The seeming ambiguity in this section is removed by construing the phrase in all cases, as relative alone to the clause, “ during the minority of his children,” to which it grammatically and appropriately belongs, and as exclusive of any condition of their enjoyment. . The exemption in favor of the widow, and her right to the rents and profits, when there were no children, depended upon her remaining unmarried and having no homestead of her own; but, in favor of minor children it depended upon no condition whatever — they might have had homesteads in their own right besides, and if daughters, there was no forfeiture, as in the case of the widow, upon their marriage.

With this construction of section 5, the several provisions of the constitution are in harmony and consistent with each other.

The widow and minor children, if there were minor children, did not, upon the death of the husband and father, succeed to a right more extensive, except as to the condition of occupancy, than he possessed. Thomp. on Homesteads, sec. 547.

And the plaintiffs,'having been compelled as sureties of Sandford to pay Weir, his late ward, the money of his in his hands, as his guardian at the time of his death, were entitled to be put in the place of Weir, as to his remedies against his' representative or heirs, and to enforce their right of exoneration to subject, as he might have done, the homestead, to the satisfaction of the demand. Bishpam Eq., sec. 335; 1 Story, Eq. Jur., secs. 567, 635, 638; Newton v. Field, 16 Ark., 216; Talbot et al. v. Wilkins et al., 31 Ark., 411; Pickett et al. v. Merchants’ National Bank of Memphis et al., 32 Ark., 346.

Necessary parties'

There was, therefore, sufficient equity in the complaint; but the heirs of Sandford, as well as his widow, were necessary parties, and without their being before the court, the plaintiffs could have no relief. Most probably it was intended and attempted to make them parties, and that th e defendants, whose interest wa3 not stated in the complaint, are his heirs, and the averment as to them and their interest was inadvertently omitted.

But the complaint should not have been dismissed absolutely, but should have been without prejudice to the bringing of another suit against proper parties.

The decree is reversed, and the cause remanded, with direction to allow the plaintiffs to amend their complaint and make the heirs parties, if so advised, and for further proceedings'; and, if not so amended, to dismiss the complaint without prejudice.


author: En&lish, C. J.

text:
    Kinner & Butler vs. Dodds et al.
    Practice in Supreme Court : No writ of error pending appeal.

    A party who has taken an appeal with supersedeas, and failed to prosecute it, must docket the appeal in the supreme court and dismiss it, before he can take a second appeal, or a writ of error.
    ERROR -to Jefferson Circuit Court.
    Hon. J. A. "Williams, Circuit Judge.

      Martin Taylor, for plaintiff in error.

      T. B. Martin, contra.

      ra Supreme
    No writ of ingappeal.
   En&lish, C. J.

There was atrial by jury of the issues made by the pleadings. Verdict and judgment for plaintiffs below. Defendants moved for a new trial, which the court overruled, and without taking any bill of exceptions, bringing upon the record the evidence, instructions of the court, etc., prayed an appeal, which was granted.

The judgment was entered on the verdict May 20, 1878.

The motion for a new trial was overruled, and the appeal prayed and granted May 24,1878.

An appeal bond was executed, and approved by the clerk, June 18,1878, and on the same day a supersedeas was issued.

On the twenty-sixth of .September, 1878, defendants, without having docketed and dismissed' their appeal in this court, sued out a writ of error to the judgment, upon which the transcript before us has been returned, and the cause submitted on motion to affirm as a delay case.

The. writ of error must be dismissed. A party who has taken an appeal, with supersedeas, and failed to prosecute it, must docket the appeal here and dismiss it, before he can take a second appeal, or a writ of error. Yell, Gov., use, etc., v. Outlaw et al., 14 Ark., 413, Turner v. Tapscott, ad., 29 Ark., 318.

Writ of error dismissed.


author: English, C. J.

text:
    Bender vs. Wooten.
    Action, Bight or.
    -J, a grocer, agreed with B, a dry goods merchant, that if he would sell goods to his customers, he would include their purchases in mortgages that he would take on their crops for groceries sold to them. B sold goods to B, a customer of J, and J included the amount of the purchase in a note taken from B for groceries, and took a mortgage on his crop to secure it. Afterwards J died, and W administered upon his estate and came into possession of the note and mortgage, and received from B his •crop, sufficient to pay the note; a large part of which was attached by B’s landlord for rent, and the proceeds tied up for several years in litigation, but finally- the attachment was discharged and the 'proceeds left in W’s hands. In the meantime the administration of J’s estate had been settled and closed in the probate court, and the uncollected claims due the estate, including the note of B, had been sold, under an ■order of the probate court, and purchased by a mercantile firm of which W was a partner, at a nominal sp.ro, while the proceeds of the cotton ■ were in his hands. “W refused to pay B’s debt against B out of the proceeds, and B sued him for money had and received. W, in defense, insisted that B’s demand was against J’s estate, and should have been probated against it. Held, that B could not have probated the claim against J’s estate, because the debt had not been paid to him in his lifetime. 2. W was not an innocent purchaser of J’s note, but purchased it subject to the rights of B, and was liable to him in the action for his -debt against B. See'McOustian v. Ramsey, 33 Ark., 141.
    APPEAL from Phillips Circuit Court.
    Non. J. N. Cypert, Circuit Judge.

      Palmer, for appellant.

      Tappan Hornor, contra.

   English, C. J.

This was an action for money had and received, brought by Sam. Bender against Charles Wooten 'in the circuit court of Phillips county. The complaint set out in detail the facts on which plaintiff sought to recover? a demurrer was sustained to it; an amended complaint filed; a demurrer sustained to it; plaintiff' rested; final judgment was rendered in favor of defendant, and plaintiff appealed.

The amended complaint, in substance, follows:

Plaintiff’, Samuel Render, states that, during the year 1872, he was doing a dry goods business in the city of Helena, and one Oliver C. Joyce was doing a grocery and produce business in said city. That it was agreed in writing between them that if plaintiff would furnish the customers of said Oliver 0. Joyce with dry goods, he would make provision for the same in the deeds of trust he was taking from them -to secuie the indebtedness they were about to create with him, and that when he collected the same he would pay over to plaintiff the account of said customers for dry goods purchased as aforesaid.

That in pursuance of said agreement plaintiff' furnished one James R. Roberts, who was a customer of said Oliver C. Joyce, with drygoods on the credit of said Joyce, as aforesaid, for the year 1872, amounting to the sum of $192.05.

That said Joyce furnished the said Roberts with groceries and supplies for the said year, and the debt of said Roberts to plaintiff, with that due to said Joyce, was included together in a note executed by said Roberts to said Joyce, and secured by a deed of trust upon his crop for said year 1872.

That on the--day of--, 187 — , said Oliver 0. Joyce departed this life, and said defendant (Charles Wooten) and one Eannie P. Joyce, widow of said Oliver 0. Joyce, were duly appointed his executors by the probate court of Phillips county'. That the note and deed of trust executed by said James P. Roberts were not paid off by him during the lifetime of said Oliver 0. Joyce, but came to the hands of said executors as assets of his estate.

That during the winter of 1872 and 1873, said Roberts delivered to defendant several bales of cotton raised by him during the year 1872, part of which was sold, and credited to him on his indebtedness to said' Joyce, by defendant.

That a portion of said crop, amounting to seven bales of cotton, worth $550, was attached in the hands of defendant for rent due from Roberts for the land on which it was raised, and defendant went security for the retention of the cotton in his own hands; and the cotton thus tied up and not accounted for to the probate court as'part of the estate of said Oliver 0. Joyce, was in and by said legal proceedings, which extended to the supreme court, withheld until the May term of said supreme court for 1877.

That on the ---day of November,. 1876, the- administration upon the estate of said Joyce was finally closed in said probate court on final settlement filed and confirmed, and said executors discharged from their said executorships.

That before said final settlement was filed in said probate court the unavailable- assets of said estate, including the debt of said Robert*, were sold at public sale, by order of said probate court, and were all bid off by one--Sexton, who was then the bookkeeper of defendant, for the sum of five dollars, in the name of C. Wooten & Bro., a firm doing business in Helena and composed of defendant and his brother, Alonzo Wooten, since deceased.

That after the decision of the said attachment suit in the supreme court, which untied the proceeds of the said seven bales of cotton, and subjected them to the payment of the said debt of the said Roberts, defendant, in whose hands said proceeds then were, credited the amount thereof upon the account of the said Fannie P. Joyce as the same stood against her upon the books of C. Wooten & J3ro.

Plaintiff' charges that the proceeds of said cotton never passed out of the hands of the defendant, and are still in his hands.

That said sum of $192.05, which was included in the debt of the said Roberts, and included in the deed of trust aforesaid, was part of said sum of money so untied by said decision of the supreme court, and was received by defendant to and for use of plaintiff, who has frequently demanded the same of defendant, and which he has always refused to pay.

Prayer for judgment against defendant for said sum of $192.05, and interest for the detention thereof, and for all proper relief.

The grounds of demurrer to the complaint were:

1. “Because it appears from said complaint that the debt of James P. Roberts was due to the estate of Oliver C. Joyce, deceased; that it was assets of said estate in the hands of defendant and Fannie P. Joyce as executor and executrix of the will of said Oliver C. Joyce, and that they were properly discharged from said administration, and therefore accounted for said claim to the probate court, and the claim of plaintiff-, if he has any, was and is against the estate of said Joyce.

2. “Because said complaint states no legal cause of action against defendant.”

Appellant could not have probated his claim against the estate of Joyce, because Roberts did not pay the debt, or any part of it to Joyce in his lifetime; the debt was wholly uncollected when Joyce died.

Roberts paid the debt, after the death of Joyce, by delivering cotton to appellee as his executor, part of which was tied up by attachment, until the administration was closed.

The note of Roberts was on its face payable to Joyce, and went into the hands of his executors as assets.

But according to the allegations of the complaint, they did not collect it and administer the proceeds, but sold it, with other assets, and appellee, in effect, became purchaser thereof for five dollars, when the debt was secured by cotton or its proceeds in his hands. He was not ah innocent purchaser, and purchased subject to the rights of appellant.

The only question of law involved in this case was settled in McCustian v. Ramsey, Ad., 33 Ark., 141. The complaint showed a cause of action, and the demurrer was erroneously sustained.

Judgment reversed and the cause remanded for further proceedings, etc.