Carter v. State, 4930

• Court: Arkansas Supreme Court
• Writing for the Court: HOLT; McFADDIN; McFADDIN; ROBINSON; I am authorized to say that JOHNSON
• Citation: Carter v. State, 326 S.W.2d 791, 230 Ark. 646 (Ark. 1959)
• Decision Date: 25 May 1959
• Docket Number: No. 4930,4930
• Parties: Jim CARTER, Appellant, v. STATE of Arkansas, Appellee.

Page 791

326 S.W.2d 791

230 Ark. 646

Jim CARTER, Appellant, v. STATE of Arkansas, Appellee.

No. 4930.

Supreme Court of Arkansas.

May 25, 1959.

Rehearing Denied Sept. 7, 1959.

No brief filed for appellant.

Bruce Bennett, Atty. Gen., by Bill J. Davis, Asst. Atty. Gen., for appellee.

HOLT, Justice.

Appellant, Jim Carter, was indicated by a Grand Jury for the crime of receiving stolen property. A jury found him guilty and fixed his punishment at one year in the penitentiary. This appeal followed.

Appellant has filed no brief in this case. Briefly, the record reflects that in the latter part of March, 1958, Floyd Harper discovered that some of his cattle had been killed and slaughtered in the area where they usually ranged. He 'found the feet and ears of three head of cattle and a lot of blood'. The ears had his mark on them and each animal was worth about $80. Donald Stuckey, an employee of appellant, took the officers to the place where the animals had been slaughtered. Thereafter, Donald Stuckey, Brown Rainey, one other person and appellant, Carter, were arrested. Stuckey and Rainey told the officers that it was at Carter's suggestion that they go out and get some cattle and he, Carter, would consider as paid a bill of Stuckey's mother. It was testified that a pick-up truck belonging to appellant was used to transport the animals and a 22-caliber rifle hull was found near the spot where the animals were killed.

For reversal, appellant, in his motion for a new trial, assigned one error as follows: 'Wherefore, defendant prays that, due to the fact that the Prosecuting Attorney asked for a continuance on all other involved cases and all other persons being tried because the sheriff could not be there and the trial judge gave that continuance, he be granted a new trial when the sheriff will be able to testify and so that Sheriff James Steed and Deputies Bill Dyer and James Bowers can testify before the jury and, if the trial judge refuses this motion, he is not giving justice to the defendant because he granted the Prosecuting Attorney's motion for a continuance upon the same grounds, over the objection of defense attorney, C. Van Hayes.'

This alleged error was first raised by appellant in his motion for a new trial. It comes too late for this court to consider it. We have consistently adhered to the rule that before an alleged error, in felony cases of a lesser degree than capital, may be considered by this court on appeal, the complaining party must first make an objection, call for a ruling from the trial court, make and preserve an exception from an adverse ruling, and the matter complained of must be assigned as error in a motion for a new trial. We announced this rule in Ford v. State, 222 Ark. 16, 257 S.W.2d 30, 32, in this language: 'The complaining party must first make an objection in the trial court, and this calls for a ruling on his objection. An exception must then be taken to an adverse ruling on the objection, which 'directs attention to and fastens the objection for a review on appeal.' The maters complained of, together with the objections and the exceptions to the ruling of the court, must be brought into the record by a bill of exceptions; and the motion for a new trial can serve no other purpose than to assign the ruling or action of the court as error'.

As indicated, since the alleged error complained of was first raised in the motion for a new trial, we do not consider it here.

Affirmed.

ROBINSON and JOHNSON, JJ., dissent.

McFADDIN, J., concurs.

McFADDIN, Justice (concurring).

I concur in the affirmance of this case for the reasons herein stated.

After the jury brought in the verdict against appellant, Carter, his counsel filed a motion for new trial; and the entire motion, omitting only caption and signature, is as follows:

'Motion For New Trial

'Comes the defendant, James E. Carter, and states and alleges:

'--1--

'That the Prosecuting Attorney asked for a continuance of the trial of Henry Glenn, Louis Coliron and Cornell Sanders, a colored man, because the Sheriff was an important member of the investigation of this entire case and that said defendant, James E. Carter, is firmly of the opinion that if said Sheriff testifies that some of the testimony of said Sheriff James Steed will be in his favor and if the jury could have heard his testimony their verdict would have been for aquittal; that said defendant, James E. Carter, requests a new trial because the trial jury should have the benefit of the testimony of the Sheriff of this County, James Steed, and if trial court had enough belief in the motion of Prosecuting Attorney that Sheriff James Steed's testimony was important enough to continue the other cases involved, then said Judge should grant a new trial and hold the trial in abeyance until said Sheriff is able to come to the witness stand; that the defense attorney consistently insisted upon the Prosecuting Attorney placing the Deputy Sheriffs, Bill Dyer and James Bowers, on the witness stand and in his opening statement he challenged the Prosecuting Attorney to do this and was refused. The defense Attorney is definitely of the opinion that if any jury could hear the testimony of Mr. Bill Dyer or Mr. James Bowers or the Sheriff James Steed on cross examination that they would find the defendant 'not guilty' and the Judge should, therefore, grant the defendant a new trial.

'Wherefore, defendant prays that, due to the fact that the Prosecuting Attorney asked for a continuance on all other involved cases and all other persons being tried because the Sheriff could not be there and the Trial Judge gave that continuance, he be granted a new trial when the Sheriff will be able to testify and so that Sheriff James Steed and Deputies Bill Dyer and James Bowers can testify before the jury and, if the Trial Judge refuses this motion, he is not giving justice to the defendant because he granted the Prosecuting Attorney's motion for a continuance upon the same grounds, over the objection of defense attorney.'

It is my view that when a pleading is in writing, as was this motion for new trial, any remarks made in oral argument by Carter's attorney in the presentation of the motion cannot be seized on as an additional assignment to the motion for new trial. So I take the position that there was no assignment in the motion for new trial about the absence of corroboration and that point cannot now be raised.

Furthermore, in Instruction No. 5, the Court told the jury that Carter could not be convicted on the uncorroborated evidence of an accomplice; and there is evidence in the record going to the matter of corroboration. The witness, Floyd Harper, testified to seeing where cattle had been slaughtered and the ears and feet left, and the mark on one of the ears showed it was Harper's cattle. The witness, Joe Swain, testified that he could see where cattle had been killed on the side of the road, and that he saw a yellow packing company truck along the same road. The witness, Virgil McCutcheon, testified that on Sunday morning he went down the Peeler Bend Road to the slaughterhouse and there was a trail of blood in the middle of the Peeler Bend Road for a mile on out to the slaughterhouse. The slaughterhouse was operated by Jim Carter.

Without dwelling any more on the matter, I reach the conclusion that the judgment should be affirmed.

ROBINSON, Justice (dissenting).

As I see it, there are two points for decision in this case: First, is there any evidence of appellant's guilt other than the testimony of accomplices? Second, is there a proper record before this Court raising the question of whether the accomplices are corroborated? In my opinion, there is not a scintilla of such corroborating evidence. True, the State's witness, Donald Stuckey, an acknowledged accomplice, implicates the appellant. And, although from Brown Rainey's testimony it is established that he helped Stuckey steal and butcher some cattle, it is not clear that an inference can be drawn from Rainey's testimony that Carter knew anything about the cattle stealing. But, even if Rainey's testimony is susceptible to such an inference, it is perfectly clear that he is an accomplice. Other than the testimony of the two accomplices, there is no evidence of guilt on the part of appellant. At the scene of the killing of some of the cattle, the hull from a 22 rifle shell was found. It was shown that Carter owned a 22 rifle, but there was no effort to show that the 22 shell was fired from Carter's rifle, even...