SMITH v. DEAN
5-935
Supreme Court of Arkansas
May 21, 1956
290 S. W. 2d 439
Affirmed.
Opinion delivered May 21, 1956.
McCourtney, Brinton, Gibbons & Segars, for appellant.
John S. Mosby, for appellee.
GEORGE ROSE SMITH, J. In 1953 the appellant, Vanteen Dean Smith, was convicted of having murdered her
Dean‘s estate consists of personal property that was ostensibly owned by him alone. This рroperty was duly inventoried by the administrator, who is a necessary party to a proceeding involving the title. Jenson v. Housley, 207 Ark. 742, 182 S. W. 2d 758. In contending that an estate by the entirety really existed the appellant relies solely on her own testimony to the effect that she and her former husband contributed their rеspective earnings to the purchase of the property and intended to own it jointly. This testimony clearly relates to transactions with thе decedent and was properly objected to as being inadmissible under the dead man‘s statute.
In resisting the claim for statutory allowances the appellees rely on
Apart from statute, however, it is a familiar principle of law that one who wrongfully kills another is not permitted to share in the other‘s estate, to collect insurance on his life, or otherwise to profit by the crime. Horn v. Cole, 203 Ark. 361, 156 S. W. 2d 787; Rest., Restitution, § 187. That principle would control this case were it not for the fact that the record contains no legal proof that the appellant killed Harold Dean. We cannot take judicial notice of the facts disclosed by the record in
At the trial below the appellees introduced a certified copy of the judgment of conviction, but it is the settled rule in this state that such a judgment is not admissible to prove the facts on which it was based. Horn v. Cole, supra; Washington Nat. Ins. Co. v. Clement, 192 Ark. 371, 91 S. W. 2d 265. We realize that the soundness of this rule is not universally conceded. The arguments for and against it were analyzed in detail by Dean Wigmore, who concluded that the application of the principle should be relaxed in certain “exceptiоnal situations.” Wigmore on Evidence (3d Ed.), § 1671a. Even if the question were one of first impression we would hesitate long before declaring that the present majority view is wrong. Much more is involved than the mere formality of retrying an issue already decided, for even the critics of the rule do not contend that the prior decision should be conclusive. All concede that the opportunity for a retrial should be afforded, and presumably that opportunity would be taken advantage of in most cases by the party dissatisfied with the outcome of the first trial. Thus the minority rule does not do away with the need for a re-examination of the issue previously determined. On the other hand, the practical advantage of thе traditional view lies in its assurance that in every case the triers of the fact will have the testimony itself before them and not merely a written record of the conclusion reached by some other tribunal—a conclusion that may have been influenced by factors not relevаnt to the later case. Since we are not convinced that our own precedents are demonstrably wrong we think it best to preservе certainty in the law by declining to overrule our earlier decisions. It follows that there is no competent evidence to show that the аppellant has forfeited her right to the statutory allowance. We express no opinion as
Affirmed as to the asserted tenancy by the entirety, reversed as to the statutory allowanсe.
HOLT, J., dissents.
J. SEABORN HOLT, J., dissenting. I would affirm this case in its entirety.
The appellant, Vanteen Dean Smith, was convicted of the crime of second degree murder, а felony, on evidence that showed she had killed her husband, Harold Dean, by poisoning. She was sentenced to serve, and did serve, a term in our Stаte Penitentiary. On appeal to this court we affirmed the judgment, Smith v. State, 222 Ark. 650, 262 S. W. 2d 272, and in that opinion said: “. . . the evidence was sufficient to have supported a conviction for first degree murder.”
The majority holds that the introduction of a certified copy of the judgment of appellant‘s conviction of a felony, was not sufficient to prove the facts on which the judgment was based. In other words, that there was no competent proof that appellant actually killed her husband. I do not agree. It seems to me that we should here and now adopt the fair and cоmmon sense rule, sanctioned by sound reasoning, that the offer in evidence of a certified copy of the judgment of a felony conviсtion, in the trial of a later civil case is sufficient evidence of the facts on which it was based. This procedure appears now to be in accord with the modern trend of decisions in many of the courts of this nation. As I view it, to require the appellees here to prove over again that appellant killed her husband, in the teeth of a jury verdict and the solemn decision of this court that she did, would be little short of ridiсulous. In support of my views McCormick on Evidence, Page 619, has this to say: “. . . a growing minority of courts . . . has insisted that common sense and consistency оf adjudication require that a judgment of conviction, offered against the person convicted in a later civil case involv-
Probably the trend of evolution will be toward the admission generally against а present party of any judgment or finding in a former civil or criminal case if the party had an opportunity to defend. The principles on which is founded the hearsay exception for official written statements would justify this extension.” We said in the Horn v. Cole Case, 203 Ark. 361, 156 S. W. 2d 787, “We think that the principle of sound public рolicy which demands that a sane, felonious killer should not profit by his crime should be applied as often as and whenever any claim is madе by such killer, whether under contract, will, or statute. The decisions which we prefer to follow attain the result which everyone (and even the cases holding the contrary) admits ought to be attained if possible.” I think all will agree that appellant ought not to be allowed to profit by her own felonious act.