Arkansas Reports 
Volume 33 

Cases argued and determined 
in the 
Supreme Court 
of the 
State of Arkansas 
at the 
November Term, 1878 

___________________ 

Brady    v     Hamlett 

Appeal from Bradley Circuit Court. 
Hon. Peter Moseley, Special Judge. 
McCain, for appellant. 

English, Ch. J.: 
John Brady brought ejectment against Thomas F. Hamlett, for possession of two forty acre tracts of land, 
in the Circuit Court of Bradley County. He claimed title under Auditor's tax deeds, which recited that the 
lands were forfeited to the State for non-payment of taxes of 1863. Hamlett filed an answer and cross-
complained in the nature of a quia timet bill, alleging that he paid the taxes charged on the lands for the 
year 1863, and that they were returned forfeited by mistake, and praying that the Auditor's deed be 
canceled, and he quieted in his possession. On his motion the cause was transferred to the equity side 
of the court; heard upon the pleadings and evidence at the September Term, 1875, and decree in favor 
of Hamlett as prayed in his cross-complaint. 

      After the decree was entered, an order was made that Brady have leave until the first day of the next
term to enter a petition for re-hearing. 

      On the first day of the March Term, 1876, Brady asked for further time to file a petition for re-hearing,
and was granted leave to file it on any day of that term. 

      At the same term there was an entry stating that, by consent of parties, the court ordered that the 
decree rendered at the previous term be opened for re-hearing, and the cause continued. 

      The cause was again heard at the September Term, 1876, and the same decree was rendered as on 
the former hearing, and Brady appealed. 

      The evidence introduced upon the hearing, and put upon record by bill of exceptions, conduced to
prove that Hamlett paid to the Collector the taxes charged upon the lands, for the year 1868, but we 
cannot consider the merits of the case on this appeal. 

      The decree rendered in the court below at the September Term, 1875, was final. If the court desired
to grant appellant time until the next term to file a motion for a rehearing, it should have opened the decree,
and continued the cause, so as to prevent the decree from becoming absolute on the expiration of the
term, and kept it within its control. But this was not done, and hence on the close of the term, the court
lost its power over the decree, and could not, of its own motion, or by consent of parties, open the 
decree for a new hearing, at a subsequent term of the court; hence all of the proceedings subsequent
to the decree rendered at the September Term, 1875, were coram non judice. 

Appeal dismissed. 

Martin  v  State
Supreme Court of Arkansas   May 21, 1928
Appeal from Circuit Court, Bradley County
Turner Butler, Judge

Bill Martin was convicted of manufacturing alcoholic liquor, and he appeals. 
Affirmed.

Clary & Ball, of Warren, for appellant.
H.W. Applegate, Atty. Gen., and John L. Carter and Darden Moose, Asst. Attys. 
Gen., for the State.

Appellant was indicted, tried, and convicted for manufacturing alcoholic 
liquor, and sentenced to one year in the penitentiary.
He specifies one error of the court on which he relies for a reversal of this 
case, relating to the admission of certain testimony of Sheriff John C. Lee, 
wherein the witness Lee was permitted to testify over appellant's objection 
to a certain conversation he had at the still with one Tom Copeland, to the 
effect that 20 of the 26 barrels of the mash found at the still was 
appellant's mash, and that he had run 2 barrells of appellant's mash that 
morning. This testimony was objected to on the ground that the witness did 
not say positively that appellant heard the conversation. But the witness did 
testify positively that appellant was present and that he could have heard 
the conversation. The court refused to permit the sheriff to testify to 
another conversation with Tom Copeland which was had to one side, and which 
appellant did not hear, but he permitted the witness to testify to that part 
of the conversation where appellant was present and either did hear, or could 
have heard it. Tom Copeland and appellant were accomplices in the commission 
of the crime, and it is a general rule that the statements of one accomplice 
made in the presence and hearing of another which are not contradicted by him 
are admissible in evidence against him as an admission on his part for his 
failure to contradict them. 
Here the sheriff testified to that part of the conversation he had with the 
witness, Copeland, which was made in the presence and hearing of appellant, 
and it was therefore admissible. Appellant did not deny that such 
conversation was had between the sheriff and his coconspirator or accomplice, 
Tom Copeland, and did not deny that he heard same. Moreover, the witness, Tom 
Copeland, testified as follows:
"Q. Did you point out anything there? 
"A. Yes, sir; I showed Mr. Lee which were my barrels and which were Mr. 
Martin's.
"Q. How many were yours?
"A. 6.
"Q. How many were Mr. Martin's?
"A. 20 were Mr. Martin's.

By the court: Where was Martin when you pointed to Mr. Lee the 6 that were 
yours and the 20 that were Mr. Martin's?
"A. He was standing there."

Therefore, even though it might be said that the testimony was inadmissible, 
still it would not be prejudicial, as the witness Copeland testified to 
substantially the same thing, without objection from appellant.

Judgment affirmed.