905 F.Supp. 90 (1995)
June Faulkner CROSSMAN, Sophie B. Chmil, Dorothy McGough and Ida K. Galante, Plaintiffs,
v.
Matthew T. CROSSON, Chief Administrator of the Courts of New York State, Irving C. Sperber, Chief Clerk of the Nassau County Family Court, Harold Butler, Deputy Chief Clerk of the Nassau County Family Court, Charles R. Koster, Lois Mitchell, Peter Lioio and Robert Palmer, Associate Court Clerks of the Nassau County Family Court, individually and as agents, servants, and/or employees of the New York State Office of Court Administration, Defendants.
No. 92-CV-3231 (JS).
United States District Court, E.D. New York.
November 6, 1995.
*91 June Faulkner Crossman, Levittown, NY, pro se.
Sophie B. Chmil, Westbury, NY, pro se.
Dorothy McGough, Woodbury, NY, pro se.
Ida K. Galante, Westbury, NY, pro se.
Angela M. Yodice, Assistant Counsel, Office of Court Administration, New York City, for Defendants.

MEMORANDUM AND ORDER
SEYBERT, District Judge:
In the instant employment-discrimination action brought pursuant to 29 U.S.C. § 621 et seq. and 42 U.S.C. § 2000e et seq., the plaintiffs, current or former employees of the Nassau County Family Court, assail various employee practices of the New York State Office of Court Administration. Pending before the Court is the defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, the defendants' motion is granted and this action is dismissed in its entirety.

BACKGROUND
Plaintiffs are current or former employees of the Nassau County Family Court. Defendants, meanwhile, are agents and employees of the New York State Office of Court Administration. The plaintiffs allege that they have been discriminated against in their employment on account of their race, religion, sex, national origin, age, and moreover in retaliation for their whistleblowing activities. According to the plaintiffs, the defendants' discriminatory practices manifested themselves in unequal terms and conditions of employment, and in harassment, including sexual harassment.
Plaintiffs filed an administrative complaint with the Unified Court System Equal Employment Opportunity ["UCS EEO"] office on June 13, 1990. On January 29, 1991, Administrative Judge McGinity dismissed the plaintiffs' complaint on the merits. On April 29, 1991, Deputy Chief Administrative Judge Traficanti affirmed Judge McGinity's determination.
Without having filed a charge with the Equal Employment Opportunity Commission ["EEOC"], the plaintiffs, on September 23, 1991, commenced an action in the United States District Court for the Northern District of New York alleging age discrimination, in violation of the Age Discrimination in Employment Act ["ADEA"], 29 U.S.C. § 621 et seq., and other discriminatory practices, in violation of Title VII of the Civil Rights Act of 1964, as amended ["Title VII"], 42 U.S.C. § 2000e et seq. The plaintiff's original complaint was signed by an attorney. Judge Munson dismissed this complaint without prejudice pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief *92 could be granted. The plaintiffs thereafter filed an amended complaint pro se. This case was then transferred, pursuant to 28 U.S.C. § 1404(a), to the United States District Court for the Eastern District of New York.
The defendants now move for summary judgment pursuant to Fed.R.Civ.P. 56 on the ground that the plaintiffs have not complied with the statutory prerequisites for bringing this action in federal court. Specifically, the defendants assail the plaintiffs' failure to file a discrimination charge with the EEOC, and their consequent inability to procure a right-to-sue letter from that agency.

DISCUSSION
Under the law of the Second Circuit, a district court must weigh the following considerations in evaluating whether to grant a motion for summary judgment with respect to a particular claim:
First, summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Second, the burden is upon the moving party to demonstrate that no genuine issue respecting any material fact exists. In considering that, third, all ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought. Fourth, the moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.... Finally, the trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding, it does not extend to issue-resolution.
Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223-24 (2d Cir.1994) (internal case citations omitted). In evaluating the above considerations, a court must be mindful of whether the purported factual dispute is material, because "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 265 (1986).
A plaintiff generally is required to file a charge with the EEOC within 180 days of the alleged discriminatory act as a prerequisite to bringing a Title VII action in federal district court. See 42 U.S.C. § 2000e-5(e). An exception to this rule arises in states, such as New York, that have an agency with the authority to address charges of discriminatory employment practices, and which require the plaintiff to file with both the state agency and the EEOC. In such instances, the plaintiff must file a charge with the EEOC within 300 days after the alleged discriminatory act. See id.; Ryan v. New York State Thruway Auth., 889 F.Supp. 70, 76 (N.D.N.Y.1995).
A charge will not always be considered "filed" with the EEOC when it is received from the complainant; rather, a charge alleging a violation of Title VII will be deemed "filed" only after the relevant state agency has had 60 days in which to review the claim, unless the state agency has terminated its proceedings at an earlier date. See 42 U.S.C. § 2000e-5(c). In New York State, one such relevant state agency is the New York State Division on Human Rights ["DHR"]. See 29 C.F.R. § 1601.74. As a result of this dual agency system, a plaintiff who wishes to bring suit in federal court under Title VII generally must file a complaint with the DHR within 240 days after the alleged discriminatory act to ensure that the charge that he or she files with the EEOC is timely.
In addition to the foregoing requirements, a plaintiff generally must obtain a "right-to-sue letter" from the EEOC before a suit can *93 be brought in federal court. See 42 U.S.C. § 2000e-5(f)(1).
The EEOC's statutory framework of administrative review serves two important purposes. First, it serves a conciliatory function of bringing the charged party before the EEOC in an attempt to secure voluntary compliance with the law. See Miller v. Int'l Tel. & Tel. Corp., 755 F.2d 20, 26 (2d Cir.) (ADEA case), cert. denied, 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 122 (1985); McCarthy v. Cortland County Comm. Action Program, Inc., 487 F.Supp. 333, 336 (N.D.N.Y.1980). Second, it notifies the charged party of the asserted violation. See Franklin v. Herbert Lehman College, 508 F.Supp. 945, 951-52 (S.D.N.Y.1981).
As the filing requirements of the ADEA were largely modeled after the filing provisions of Title VII, many of the governing procedures of these two statutes are the same.[1]See Tolliver v. Xerox Corp., 918 F.2d 1052, 1055-57 (2d Cir.1990), cert. denied, 499 U.S. 983, 111 S.Ct. 1641, 113 L.Ed.2d 736 (1991). Accordingly, in view of the similarities between Title VII and the ADEA, a number of courts have applied Title VII jurisprudence to guide their interpretation of analogous ADEA provisions. See id. at 1056-57.
In the instant case, the defendants argue that summary judgment must be granted because the plaintiffs have failed to satisfy the statutory prerequisites for bringing an action in federal court. Specifically, the defendants contend that the plaintiffs failed to file charges with the EEOC or the relevant state agency, and moreover have failed to obtain a right-to-sue letter from the EEOC. In order to determine whether the plaintiffs have failed to satisfy these "statutory prerequisites," some elaboration upon this phrase is required.
The seminal case in this regard is Zipes v. Trans World Airlines, 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), in which the Supreme Court held that Title VII's requirements concerning the filing of a charge with the EEOC are statutory prerequisites, and not jurisdictional in nature. Because these prerequisites are statutory and not jurisdictional, should a plaintiff fail to satisfy these requirements, a federal court, in its discretion, may elect to hear the action because "like a statute of limitations, [these requirements are] subject to waiver, estoppel and equitable tolling." Id. at 393, 102 S.Ct. at 1132. Had these elements instead been jurisdictional, a plaintiff's failure to file timely, and to obtain a right-to-sue letter, would deprive the court of subject matter jurisdiction, thereby necessitating the dismissal of the suit. This distinction likewise applies to ADEA actions. See Miller, 755 F.2d at 24.
The plaintiffs bear a heavy burden in establishing that equitable principles should permit the procedural requirements in question to be bypassed, as courts in this circuit are generally "reluctant to hear claims that were not originally filed with the EEOC." Dennis v. Pan Am. World Airways, 746 F.Supp. 288, 290 (E.D.N.Y.1990). Strong policy reasons direct that a plaintiff should not be able to "circumvent the Congressionally-created administrative scheme designed to facilitate voluntary compliance with or to settle disputes falling under Title VII" or the ADEA. Moche v. City Univ. of New York, 781 F.Supp. 160, 167 (E.D.N.Y.1992), aff'd, 999 F.2d 538 (2d Cir.1993). Furthermore, "[p]rocedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.... [I]n the long run, experience teaches that strict adherence to the procedural *94 requirements specified by the legislature is the best guarantee of evenhanded administration of the law." Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 1726, 80 L.Ed.2d 196 (1984) (internal quotations omitted).
The Second Circuit Court of Appeals has noted that an equitable modification to the statutory prerequisites will not be permitted unless "the employee was actively misled by his employer, he was prevented in some extraordinary way from exercising his rights, or he asserted his rights in the wrong forum. ..." Miller, 755 F.2d at 24 (citing Smith v. American President Lines, 571 F.2d 102, 109 (2d Cir.1978)). Thus, "[a]n `extraordinary' circumstance permitting tolling of the time bar on equitable grounds might exist if the employee could show that it would have been impossible for a reasonably prudent person to learn that his discharge was discriminatory." Id.
Of the potential bases for equitable modification noted by the Second Circuit Court of Appeals in Miller, the ground that is most applicable to this case is the plaintiffs' assertion of their rights in the wrong forum. As another district court within this circuit recently stated, "[t]he Second Circuit has ... indicated in dicta that tolling of the time bar may be permitted as a `matter of fairness' if a plaintiff asserts her rights in the wrong forum." Ryan v. New York State Thruway Auth., 889 F.Supp. 70, 79 (N.D.N.Y.1995) (citing Miller, 755 F.2d at 24). In Ryan, the court concluded that the plaintiff's filing of a complaint alleging sexual harassment with the Office of Civil Rights of the United States Department of Transportation ["DOT"] failed to toll the limitations period for filing a charge with the EEOC. See id. at 78-79. In reaching this determination, Judge Pooler rejected the plaintiff's attempt to analogize her filing with the DOT to a filing with the Office of Federal Contract Compliance ["OFCC"], which the Second Circuit regarded in Egelston v. State Univ. College, 535 F.2d 752, 755 n. 4 (2d Cir.1976), to constitute a constructive filing with the EEOC, in accordance with the EEOC's own administrative practice. See Ryan, 889 F.Supp. at 78-79. Rather, Judge Pooler concluded that "[b]ecause [the plaintiff] should have known that she should file her sexual harassment complaint with EEOC or DHR, equitable tolling is not appropriate." See id. at 79.
In a similar vein, in Franklin v. Herbert Lehman College, 508 F.Supp. 945 (S.D.N.Y. 1981), Judge Tenney concluded that the plaintiff's use of internal grievance procedures established by a college did not toll the limitations period for filing a charge with the EEOC. See id. at 952. The circumstances in Franklin and in Ryan are to be contrasted with those presented in Stutz v. Depository Trust Co., 497 F.Supp. 654 (S.D.N.Y. 1980), in which equitable tolling was permitted where a pro se complainant was provided incorrect advice by a DHR representative concerning the filing of a charge with the EEOC. See id. at 656. In Stutz, in contrast to the instant case in which the EEOC has not appeared as amicus curiae, the EEOC itself advocated the position that the plaintiff should be entitled to proceed to federal court without a right-to-sue letter. See id. at 655-56.
In the case at bar, the plaintiffs have filed neither with the EEOC, nor with the appropriate state agency. Instead, the plaintiffs have filed a complaint of discrimination with the UCS EEO office, which upon review was denied on its merits by Administrative Judge McGinity, and affirmed on appeal by Deputy Chief Administrative Judge Traficanti. While it is possible that the plaintiffs may have believed that their pursuit of an administrative claim with the UCS EEO office satisfied the requirements for instituting an action in federal court, the Court regards the affirmation set forth on the same form that the plaintiffs executed to commence their administrative complaint to hold considerable significance in its evaluation of whether the plaintiffs are entitled to an equitable modification of the applicable statutory prerequisites. The affirmation appears immediately above the plaintiffs' respective signatures, and reads as follows:

Affirmation
I affirm that the information contained in this claim is true to the best of my knowledge, information and belief.
I understand that if I choose to file a claim with the NYS Division of Human Rights *95 based on this claim, I must file within one year of the date of the discriminatory act described herein or the NYS Division of Human Rights may lose jurisdiction over this matter.
I understand that if I choose to file a claim with the U.S. Equal Employment Opportunity Commission based on this claim, I must file within 180 days from the date of the discriminatory act described herein or the U.S. Equal Opportunity Commission may lose jurisdiction over this matter.
I understand that if I elect to file with the NYS Division of Human Rights, the U.S. Equal Employment Opportunity Commission, or any appropriate regulatory agency, my UCS EEO office internal claim will be deemed "withdrawn" as of the date filed with the external agency.
I authorize the UCS EEO office to use my name in investigating the discrimination claim.
I have read and understand the contents of this document.
Signature Sophie B. Chmil June 13, 1990
June Faulkner Crossman   Almanette Martin[2]
Dorothy McGough          Ida Galante
Pls.' Opposing Aff. Ex. In light of this affirmation, the Court is of the opinion that the plaintiffs' use of their employer's grievance procedures constituted a fully disclosed exchange of rights, whereby the plaintiffs gave up their right to pursue their claims with the DHR and EEOC so that they could utilize their employer's administrative apparatus. Under these circumstances, and moreover, in the absence of any allegations of bad faith or deception on the part of the defendants in preventing the plaintiffs from timely exercising their federal rights under Title VII or the ADEA, the Court regards equitable tolling to be inappropriate. Indeed, any error in hindsight on the part of the plaintiffs in failing to file a charge with the EEOC strikes the Court as little more than "a garden variety claim of excusable neglect which fails to justify equitable tolling." South v. Saab Cars USA, Inc., 28 F.3d 9, 12 (2d Cir.1994) (internal quotations omitted). Accordingly, the defendants' motion for summary judgment dismissing this action must be granted.[3]

CONCLUSION
For the foregoing reasons, the defendants' motion for summary judgment is GRANTED and this action is dismissed in its entirety.
SO ORDERED.
NOTES
[1]  One critical distinction between these two statutes arises in connection with the issuance of a right-to-sue letter. In contrast to Title VII, ADEA does not require that the EEOC issue a right-to-sue letter in order for a federal lawsuit to be commenced. See Tolliver v. Xerox Corp., 918 F.2d 1052, 1057 (2d Cir.1990), cert. denied, 499 U.S. 983, 111 S.Ct. 1641, 113 L.Ed.2d 736 (1991). In addition, under Title VII, in a "deferral jurisdiction," 60 days must pass after the commencement of a state proceeding before a charge may be filed with the EEOC, unless the state proceeding is concluded in less than 60 days. See 42 U.S.C. § 2000e-5(c). In contrast, "ADEA imposes no sequential filing requirement but expressly permits complainants to file simultaneously with the EEOC and a state agency." Brodsky v. City Univ. of New York, 56 F.3d 8, 9 (2d Cir.1995).
[2]  Martin is the only one of the five signatories who is not named as a plaintiff in the amended complaint.
[3]  The Court notes that the plaintiffs were represented by counsel at the time that this action was commenced in federal district court in the Northern District of New York. In this regard, Judge Munson, in his memorandum-decision and order dismissing the original complaint without prejudice to replead, stated that "[n]ot only is the complaint signed by E. Stewart Jones Sr., but at oral argument on this motion, plaintiff Crossman acknowledged that Mr. Jones was involved in drafting the complaint." Crossman v. Crosson, 91-CV-1076, at 6 (N.D.N.Y. Feb. 7, 1992). The Second Circuit Court of Appeals has held that equitable tolling of the filing time is inappropriate if the plaintiff was represented by counsel during the period in which she was statutorily required to file charges with the EEOC, notwithstanding the plaintiff's allegations that she was given incorrect information by both an EEOC employee and her own counsel. See Keyse v. California Texas Oil Corp., 590 F.2d 45, 47 (2d Cir.1978); Smith v. American President Lines, 571 F.2d 102, 109-10 (2d Cir.1978). This line of analysis is not dispositive, however, to the present motion for summary judgment, because the record is unclear as to whether the plaintiffs were represented by counsel during the 300-day period in which they were statutorily required to file their charge with the EEOC.


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589 F.Supp. 374 (1984)
Michael W. MURPHREE, Sr., Individually and on behalf of all other similarly situated
v.
William WINTER, Ed Pittman, and Bill Allain as Members of the State Board of Election Commissioners, et al.
Civ. A. No. J83-0644(B).
United States District Court, S.D. Mississippi, Jackson Division.
June 12, 1984.
*375 *376 Shirley Payne, Jackson, Miss., for plaintiff.
Carl John Hedglin, William S. Boyd, III, W.V. Westbrook, Sp. Asst. Attys. Gen., David W. Clark and Natie P. Caraway, Jackson, Miss., for defendants.

ORDER AND MEMORANDUM OPINION
BARBOUR, District Judge.
On June 27, 1983, the Plaintiff, Michael W. Murphree, Sr. was arrested on an aggravated assault charge. Since he was unable to post bond, he remained incarcerated in the Jackson City Jail until his release on August 22, 1983. During this time, the primary elections for certain state offices in Mississippi were held. The first primary was held on August 2, 1983. Murphree wanted to vote in the August 2 primary; however, he was still incarcerated. It is undisputed that he asked an official at the jail, Officer Jackson, if he would be allowed to vote. (Affidavit of Michael Murphree). Officer Jackson informed the Plaintiff "there was no way an inmate could vote. There were no provisions made for any prisoner of any status to obtain access to a ballot." (Affidavit of Michael Murphree). The Plaintiff then called his wife and asked her to find out if there was any way he could vote.
According to the Affidavit of Jan Lewis, the Director of the American Civil Liberties Union of Mississippi, which Affidavit is undisputed, Mrs. Murphree called her on Tuesday, August 2, 1983, and explained the Plaintiff's situation. Mrs. Murphree told Lewis that her husband wished to vote that day in the primary election.
Jan Lewis then called the Hinds County Election Commission Board. It immediately referred her to the Hinds County Circuit Clerk's Office and William McKinley, the Circuit Clerk and Registrar. According to Jan Lewis' Affidavit:
The woman who answered the phone stated that the office had received a similar inquiry from another prisoner's wife but she did not know what was being done; she referred me to Mr. McKinley. McKinley expressed concern but stated that because there was no absentee ballot provision detainees would have to go to the polls to vote. He doubted that a deputy would take them to the polls. McKinley suggested that we (ACLU) would need to get some legislation passed to resolve the dilemma.
Mrs. Lewis then contacted City and County officials who refused to release Mr. Murphree, even temporarily, so he could vote.
On August 18, 1983, the Plaintiff filed the Complaint in this law suit seeking declaratory and injunctive relief, a Motion for class certification and a Motion for a temporary restraining order:
suspending and restraining the operation, enforcement or execution of Section 23-9-601, Miss.Code Ann. (1972) and the custom and practice of defendants, as set forth in the complaint ... in so far as said law, custom and usage denies to the plaintiff the right to vote, pending the hearing upon the issuance of a preliminary injunction, so that the named plaintiff, Michael W. Murphree, Sr., shall be afforded an opportunity to vote in the August 23, 1983, primary election.
The relevant provision of the Mississippi Absentee Voter Law at issue provides:
For the purpose of this article, any duly qualified elector may vote as provided in this article if he be one who falls within the following categories:
(1) Any qualified elector who is a bona fide student, teacher or administrator at any college, university, junior college, high, junior high, or elementary grade school whose studies or employment at such institution necessitates his absence from the county of his voting residence on the date of any primary, general or special election, or the spouse and dependents of said student, teacher or administrator *377 if such spouse or dependent(s) maintain a common domicile, outside of the county of his voting residence, with such student, teacher or administrator.
(2) Any qualified elector who is an actual driver, operator or crewman employed and actually engaged in transportation service of a duly authorized common carrier in interstate commerce and whose employment with such carrier necessitates his absence from the county of his voting residence at the time of any primary, general or special election, may vote at such election as provided in this article. For the purpose of this article, common carriers in interstate commerce shall be defined as trains, buses, trucks, airplanes, and seagoing ships and vessels.
(3) Any qualified elector who is required to be away from his place of residence on any election day due to this employment: (a) as personnel assigned to any offshore oil, gas or other mineral drilling rig in the Gulf of Mexico or adjacent waters, (b) as personnel serving aboard boats, barges, dredges, or other watercraft on inland waterways within the continental limits of the United States, (c) as personnel serving aboard commercial fishing vessels operating off the Mississippi Gulf Coast, (d) as an employee of a member of the Mississippi Congressional delegation and the spouse and dependents of such person if he or she shall be residing with such absentee voter away from the county of the spouse's voting residence, or (e) as an employee, businessman, professional, tradesman and other person actually engaged in any legal occupation whatsoever and whose employment or occupation necessitates his being over fifty (50) miles distant from the county of his voting residence at the time of any election, and the spouse and dependents of such person if he or she shall be residing with such absentee voter away from the county of the spouse's voting residence.
(4) Any person who is sick or physically unable to go to the polls on election day and vote in person.

(5) Any member of the Mississippi Congressional delegation absent from Mississippi on election day, and the spouse and dependents of such member of the congressional delegation. (Emphasis added).
Miss.Code Ann. § 23-9-603 (Supp.1983). The Motion was scheduled for hearing at 11:00 A.M. on August 22, 1983.
At the hearing on the Temporary Restraining Order the Defendants[1] advised the Court that the Plaintiff's bond had been reduced so that he could be released and thereby vote, thus mooting the T.R.O.
The Plaintiff filed a Motion for Preliminary Injunction on October 4, 1983. The State Defendants did not answer the Complaint until October 11, 1983, denying most of the allegations of the Complaint. The State Defendants also filed a Motion to Dismiss, or in the alternative for Summary Judgment on October 11, 1983.

DEFENDANT'S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT
The State and County Defendants filed Motions to Dismiss or alternatively, for Summary Judgment. Both Defendants assert that the Complaint fails to allege a case or controversy under Article III of the Constitution and that the Plaintiff lacks standing to maintain this action.
Article III of the Constitution limits the judicial power of the United States to the resolution of "cases" and "controversies". *378 The United States Supreme Court has recently held:
[A]t an irreducible minimum, Art. III requires the party who invokes the court's authority to "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the Defendant," Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 [99 S.Ct. 1601, 1607, 60 L.Ed.2d 66] (1979), and that the injury "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision," Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 [96 S.Ct. 1917, 1926, 48 L.Ed.2d 450] (1976).
Valley Forge Christian College v. American United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982).
Further, the Court held:
Beyond the constitutional requirements, the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing. Thus, this Court has held that "the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. [490], at 499 [95 S.Ct. 2197, 2205, 45 L.Ed.2d 343].
454 U.S. at 474, 102 S.Ct. at 759.
In their briefs and during oral arguments, Defendants contend that Michael Murphree lacks standing to maintain this action. Particularly, the Defendants contend that the Plaintiff never made a formal written request for an absentee ballot as required by Mississippi Code Annotated, Section 23-9-605 (Supp.1983).
The underlying facts are not in dispute. Michael Murphree was a registered voter in Hinds County, Mississippi. He was arrested on June 27, on a charge of aggravated assault. Since he was unable to post bond, he remained incarcerated in the Jackson City Jail. He wished to vote in the state-wide election in August. His attorney, Jan Lewis, contacted William McKinley, Hinds County Circuit Clerk. Mr. McKinley advised Ms. Lewis that the Mississippi Absentee Ballot statute made no provision for pretrial detainees and consequently Mr. Murphree, as well as any other pretrial detainee, could not vote by absentee ballot in Mississippi. The State Defendants admitted in oral argument that this was the advise given by Mr. McKinley. They maintain, however, that Mr. Murphree cannot bring this claim because he failed to request from Mr. McKinley an absentee ballot in writing as required by the statute. The Plaintiff admits that he did not make a formal request in writing but asserts it would have been a waste of time. The Defendants do not maintain that Mr. McKinley would have allowed Michael Murphree to vote absentee if the requirements of Section 23-9-605 had been followed. While the State has submitted Affidavits of other Circuit Clerks in Mississippi stating that the language "physically incapacitated" in Section 23-9-605 and "physically unable" in Section 23-9-603 would apply to pretrial detainees, the State failed to controvert the proof offered by the Plaintiff to show that Mr. McKinley so interpreted the statute to preclude pretrial detainees.[2] The completion in writing to Mr. McKinley of a formal application would add nothing to "that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). Instead, "completion of the formal application process by plaintiff would have been little more than hollow formalism." Goldsmith v. Pringle, 399 F.Supp. 620, 623 (D.Col.1975). It is, therefore, the opinion of this Court that Michael W. Murphree, *379 Sr., does have standing to maintain this action.[3]

CLASS CERTIFICATION
The Plaintiff has filed a Motion for Class Certification of a Plaintiff class and Defendant class. Specifically, Plaintiff seeks a class certified pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure defined as "all present and future pretrial detainees and other prisoners incarcerated in Mississippi, who are not disenfranchised for conviction of certain felonies under Sections 23-5-35 and 99-19-35 of the Mississippi Code Annotated of 1972." In addition, the Plaintiff seeks a defendant class certified pursuant to Rule 23(b)(1)(B) of the Federal Rules of Civil Procedure for a class defined as "all present and future elections officials and law enforcement custodial officers in Mississippi, who control access of prisoners to the vote."
Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure which provides:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impractical, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interest of the class.
F.R.Civ.P. 23. The burden is on the Plaintiff to show that the requirements of Rule 23 have been met. General Telephone Company of the Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). There must be a factual basis for determining whether these Rule 23 requirements have been satisfied. Fleming v. Travenol Laboratories, Inc., 707 F.2d 829, 832-33 (5th Cir.1983).
The Plaintiff has submitted affidavits showing the number of pretrial detainees and convicted misdemeanants in Copiah, Madison, Simpson, Sharkey, Yazoo, Lowndes, Rankin, and Hinds Counties, Mississippi, on certain dates, which number totals 234. There are a total of 82 counties in the State. In addition, this class would encompass any future pretrial detainees in the State of Mississippi. Consequently, the Plaintiff has satisfied the numerosity requirement of Rule 23.
The Plaintiff has also submitted his own affidavit showing that he was denied the right to vote through the interpretation of the statute by Mr. McKinley. The Fifth Circuit recently addressed the relationship between standing and class actions in Vuyanich v. Republic National Bank of Dallas, 723 F.2d 1195, (5th Cir.1984):
Under principals of standing, the named plaintiffs "must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent."
Id. at 1200, quoting Warth v. Seldin, 422 U.S. 490, 502, 95 S.Ct. 2197, 2207, 45 L.Ed.2d 343 (1975). As noted previously, the Plaintiff herein has established the "requisite case or controversy between [himself] and the Defendants ..." 723 F.2d at 1200, to satisfy the requirement of standing and commonality and typicality under Rule 23.
Further, the Plaintiff has shown that he will fairly and adequately protect the interest of the plaintiff class. This Court finds that the Plaintiff's attorney is qualified, experienced and able to conduct this litigation.
Consequently, the Plaintiff's Motion for Class Certification of a Plaintiff's class pursuant to Rule 23(b)(2) of Federal Rules of Civil Procedure to be defined as all present and future pretrial detainees and *380 other prisoners incarcerated in Mississippi who are not disenfranchised for conviction of certain felonies under Sections 23-5-35 and 99-19-35 of the Mississippi Code Annotated of 1972 is hereby granted.
As noted above, the Plaintiff also seeks certification of a Defendant class to be defined as all present and future election officials and law enforcement custodial officers in Mississippi who control access of prisoners to the vote. However, the Plaintiff has submitted no evidence whatsoever in support of this Motion. As the courts have held, actual not presumed compliance with Rule 23 must be satisfied. See General Telephone Company of Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982). Accordingly, the Plaintiff's Motion for Certification of a Defendant's Class is hereby denied.

ABSTENTION
When a constitutional question such as equal protection of the fundamental right to vote over which this Court clearly has jurisdiction, is presented, the Court also has jurisdiction over the state "statutory" question. See Hagans v. Lavine, 415 U.S. 528, 543-44, 94 S.Ct. 1372, 1382, 39 L.Ed.2d 577 (1974) (the statutory claim is to be decided first and the constitutional claim not reached if the statutory claim is dispositive).
The Defendants argue, however, that this Court should abstain under the doctrine enunciated by the Supreme Court in Railroad Commission of Texas v. Pullman Company, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Specifically, the Defendants argue that the Mississippi absentee voting provision in question has never been interpreted by the Mississippi Courts which should be given an opportunity to interpret the statute in question to be constitutional.
The Supreme Court has stated:
In applying the doctrine of abstention, a federal district court is vested with discretion to decline to exercise or to postpone the exercise of its jurisdiction in deference to state court resolution of underlying issues of state law. [citation omitted]. Where the resolution of the federal constitutional question is dependent upon, or may be materially altered by, the determination of an uncertain issue of state law, abstention may be proper in order to avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication. [citation omitted]. The doctrine, however, contemplates that deference to state court adjudication only be made where the issue of state law is uncertain. [citations omitted].
Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 1181, 14 L.Ed.2d 50 (1965). The state law issue involved here is Section 23-9-603 of the Mississippi Code which allows persons "sick or physically unable" to go to the polls in person to vote by absentee ballot. Thus the question is while the Mississippi statute doesn't expressly refer to pretrial detainees, does the term "physically unable" encompass pretrial detainees?
The Supreme Court has addressed the fundamental right to vote as it pertains to pretrial detainees in O'Brien v. Skinner, 414 U.S. 524, 525, 94 S.Ct. 740, 741, 38 L.Ed.2d 702 (1974). In O'Brien, the Court held the pretrial detainees are "under no legal disability impeding their legal right to register or to vote; they are simply not allowed to use the absentee ballot and are denied any alternative means of casting their vote although they are legally qualified to vote." Id. at 530, 94 S.Ct. at 743. This was held to be a violation of the equal protection clause of the fourteenth amendment. Therefore, the Mississippi statute must be interpreted to allow pretrial detainees to vote or the statute becomes unconstitutional.
With this background, we will now examine the statutory provision in question to determine whether the state law issue is uncertain for purpose of abstention. There is no state legislative history available to aid in this interpretation. *381 However, in construing a statute which "is susceptible to two different readings, one reading which would make it constitutional and a second reading which would make it unconstitutional, the rule of construction is that a court must read the statute to be constitutional." [emphasis added]. Anderson v. Edwards, 505 F.Supp. 1043, 1048 (S.D.Ala.1981) citing Bickel v. Burkhart, 632 F.2d 1251, 1255 (5th Cir.1980) (addressing regulations of fire department). The statute states that those who are "sick or physically unable" to vote at the polls in person can vote by absentee ballot. Pretrial detainees, in the very literal sense, are physically unable to go to the polls on election day and vote in person. To interpret the statute to exclude the fundamental right to vote to this class would render the statute unconstitutional. Consequently, it is obvious that the statute must include pretrial detainees under the provision made for those persons who are "physically unable" to go to the polls. Since the state statute is not "uncertain," Pullman abstention would be inappropriate.
It should be noted that even if the statute in question were uncertain, this would not be an appropriate case for abstention. Various counties across the state of Mississippi have been holding the elections which were postponed in the fall due to the need to redistrict the counties. In addition, there is another state-wide election in November with the party primaries in June. As so aptly stated by the Fifth Circuit, "[d]elay which follows from abstention is not to be countenanced in cases involving such a strong national interest as the right to vote." Edwards v. Sammons, 437 F.2d 1240, 1244 (5th Cir.1971) citing Herman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965). See Duncan v. Poythress, 657 F.2d 691, 696-97 (5th Cir.1981) (abstention requires inquiry into the rights at stake and the cost of delay pending state court adjudication.)
As noted above, Section 23-9-603 literally includes pretrial detainees under the provision made for those who are "physically unable" to go to the polls and vote in person. Thus, Section 23-9-603 complies with the Constitution and the decision of the United States Supreme Court in O'Brien v. Skinner, 414 U.S. 524, 525, 94 S.Ct. 740, 741, 38 L.Ed.2d 702 (1974).

MOTION FOR PRELIMINARY INJUNCTION
The Plaintiff has also filed a Motion for Preliminary Injunction seeking to enjoin the Defendants from prohibiting the Plaintiffs access to absentee ballots under Mississippi's Absentee Voter Law, Section 23-9-601, et seq. of Miss.Code Ann. (Supp. 1983). The prerequisites for granting a preliminary injunction were set forth in Canal Authority of the State of Florida v. Callaway, 489 F.2d 567 (5th Cir.1974) as follows:
1. A substantial likelihood that the Plaintiff will prevail on the merits;
2. A substantial threat that the Plaintiff will suffer irreparable injury if the injunction is not granted;
3. The threatened injury to the Plaintiff outweighs the threatened harm the injunction may do to the Defendants; and
4. Granting the preliminary injunction will not disserve the public interest.
Obviously, there is no question but that pretrial detainees and convicted misdemeanants who are incarcerated cannot be denied access to the ballot under the equal protection clause of the fourteenth amendment and the United States Supreme Court decision in O'Brien v. Skinner, 414 U.S. 524, 525, 94 S.Ct. 740, 741, 38 L.Ed.2d 702 (1974). Thus, the Plaintiff class satisfies the first prerequisite to a preliminary injunction.
As to whether or not the Plaintiff class will suffer an irreparable injury if the injunction is not granted, the United States Supreme Court has held that the deprivation of a fundamental right constitutes irreparable harm requiring the issuance of a preliminary injunction. Elrod v. Burns, 427 U.S. 347, 373-74, 96 S.Ct. 2673, 2689-90, 49 L.Ed.2d 547 (1976). Further, the threatened injury to the Plaintiff class, deprivation *382 of the fundamental right to vote, outweighs any threatened harm that the injunction could do to the Defendants. In fact, it is hard to imagine what actual harm the Defendants themselves could suffer. Mere administrative inconvenience can never justify denial of a constitutional right. See e.g., Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Goldberg v. Kelly, 397 U.S. 254, 266, 90 S.Ct. 1011, 1019, 25 L.Ed.2d 287 (1970); Watson v. City of Memphis, 373 U.S. 526, 537-38, 83 S.Ct. 1314, 1320-21, 10 L.Ed.2d 529 (1963). The United States Supreme Court has held as a general matter, before the right to vote can be restricted, the purpose of the restriction and the assertedly overriding interest served by it must meet close constitutional scrutiny. McDonald v. Board of Election Commissioners, 394 U.S. 802, 806-07, 89 S.Ct. 1404, 1407, 22 L.Ed.2d 739 (1969). In order to meet this strict constitutional scrutiny, the Court has required the state to prove a compelling state interest to justify restriction of the right to vote. The State of Mississippi attempts to make no justification for contesting the right to vote of the Plaintiff class in this instance.
Clearly, the granting of this preliminary injunction will not disserve the public interest. The fundamental right to vote is one of the cornerstones of our democratic society. The threatened deprivation of this fundamental right can never be tolerated.
Accordingly, the Plaintiff's Motion for Preliminary Injunction is hereby granted and the Defendants are prohibited from denying the Plaintiff class access to an absentee ballot under Mississippi's Absentee Voter Laws, Miss.Code Ann. § 23-9-601, et seq. (Supp.1983). This Court sees no need for an additional hearing on the permanent injunction. Consequently, it is hereby ordered that this preliminary injunction shall automatically become a permanent injunction after 20 days unless objections are filed showing why it should not. At the expiration of the 20 days a final judgment shall be entered pursuant to Rule 58 if no objections have been filed.
NOTES
[1]  The Plaintiff named as Defendants the members of the State Board of Election Commissioners, Hinds County Board of Election Commissioners, Hinds County Circuit Clerk and Registrar of Hinds County, Chief of Police for the City of Jackson, Hinds County, Mississippi, members of the Election Commission for the City of Jackson, Hinds County, Mississippi, Election Co-ordinators for the Republican Party of Hinds County, Mississippi, Election Co-ordinators for the Democratic Party of Hinds County, Mississippi and the Hinds County Board of Supervisors.
[2]  The Defendants attempt to create an ambiguity in Section 23-9-603 sufficient to justify their abstention argument by arguing that McKinley interpreted the statute to preclude pretrial detainees while other Circuit Clerks would interpret the statute, if called upon, to include pretrial detainees.
[3]  The Defendants herein admit that "[t]his case belongs ... to that narrow class of cases in which the termination of a class representative's claim does not moot the claims of the unnamed members of the class." Gerstein v. Pugh, 420 U.S. 103, 110, 95 S.Ct. 854, 861, 43 L.Ed.2d 54 (1975).


  OPINION HEADING PER CUR

                NO. 12-06-00021-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS
DISTRICT

TYLER, TEXAS

JAMES
EARL SMITH,        §          APPEAL FROM THE 241ST
APPELLANT

V.        §          JUDICIAL
DISTRICT COURT OF

THE
STATE OF TEXAS,
APPELLEE   §          SMITH
COUNTY, TEXAS

MEMORANDUM
OPINION
            A jury convicted Appellant James Earl Smith of unlawful
possession of a firearm by a felon, a third degree felony, and assessed the
maximum punishment of imprisonment for ten years and a $10,000 fine.  In four issues, Appellant challenges the
legal and factual sufficiency of the evidence, contends he did not receive
effective assistance of counsel, and maintains the trial court erred in
admitting gruesome photographs of the corpse of Appellant’s murdered wife.  We affirm.

Background
            Appellant stipulated at the outset of the trial that he
had been convicted of a felony and had not been released from parole
supervision for five years.
            The evidence at trial showed that Appellant made a 9-1-1
call to report that his wife had been murdered.
Sheriff’s deputies dispatched to investigate found the body of Appellant’s
wife, dead from a shotgun wound to her face.
Appellant told the officers that there had been two guns in the house, a
shotgun bought by his wife and a pistol that belonged to his stepson.  A 9mm semiautomatic Ruger pistol was
discovered in the linen closet between Appellant’s bedroom and the living
room.  The pistol and its clip were
tested for fingerprints, but no identifiable prints were recovered.  Detective Joe Rasco of the Smith County
Sheriff’s Department testified that “the pistol was not associated with the
homicide.”

            Lasabra Johnson, Appellant’s stepson, told the jury that
he owned the Ruger pistol, but that he had given it to his mother in Shreveport
because the Air Force was transferring him to Alaska.  Appellant was not with his mother when he
gave her the pistol.  Lasabra Johnson
testified that his mother kept the shotgun in plain view in the bedroom where
she and Appellant slept.
            Mary Anderson testified that she was Appellant’s
girlfriend.  She told the jury that
Appellant had told her he owned two guns that “his son” had given him.
            Detective Gerald Caldwell interviewed Appellant shortly
after his wife’s murder.  He testified
that he thought Appellant’s calm, unemotional demeanor during the interview was
strange because “as far as I knew, [he was] the last person to see his wife
alive and the first person to find her that morning.”  On cross examination, Appellant’s attorney
asked Detective Caldwell the following question: “Now Detective, he was not the
last person to see his wife alive.  The
killer was.  Wouldn’t you agree with me
on that statement?”  The detective
replied, “Yeah.”  On redirect
examination, Detective Caldwell was allowed to testify, over objection, that
based on everything he knew, he believed Appellant was his wife’s murderer
although he lacked sufficient proof to charge him.
            Chester Webb testified, over objection, that at a family
gathering on Labor Day in 1999, Appellant pushed him down and then went back in
his house and got a shotgun.  Appellant
returned with a single shot shotgun, not seeing Webb, and fired the shotgun
into the air from his porch.
            Detective Joe Rasco made a thorough investigation of the
scene of the murder of Appellant’s wife.
Through Detective Rasco’s testimony, over defense objection, photographs
of the victim were introduced into evidence showing the effect of the fatal
shotgun wound to her face.

Legal and Factual Sufficiency of the Evidence
            In reviewing a legal sufficiency challenge, an appellate
court must view the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found all of the
essential elements of the charged offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Sanders v. State,
119 S.W.3d 818, 820 (Tex. Crim. App. 2003).
In a factual sufficiency review, the court should view the evidence in a
neutral light and ask whether a jury was rationally justified in its finding of
guilt beyond a reasonable doubt.  Watson
v. State, 204 S.W.3d 404, 413-14 (Tex. Crim. App. 2006).  The court should not reverse a case because
of the factual insufficiency of the evidence unless it can say, with some
objective basis in the record, that the great weight and preponderance of the
evidence contradicts the jury’s verdict.
Id. at 417.  “The
difference between the two standards is that the [legal sufficiency standard]
requires the reviewing court to defer to the jury’s credibility and weight
determinations while the [standard for factual sufficiency] permits the
reviewing court to substitute its judgment for the jury’s, ‘albeit to a very
limited degree.’” Marshall v. State, 210 S.W.3d 618, 625 (Tex.
Crim. App. 2006).
Applicable Law
            A person who has been convicted of a felony commits an
offense if he possesses a firearm (1) after conviction and before the fifth
anniversary of the person’s release from confinement following conviction of
the felony or the person’s release from supervision under community
supervision, parole, or mandatory supervision, whichever date is later, or (2)
after the period described by subdivision (1), at any location other than the
premises at which the person lives.  Tex. Penal Code Ann. § 46.04(a)(1)(2)
(Vernon 2003).
            Possession is defined by the Penal Code as “actual, care,
custody, control, or management.”  Tex. Penal Code Ann. § 1.07(a)(39)
(Vernon 2003).  A person commits an
offense only if he voluntarily possesses the prohibited item. Tex. Penal Code Ann. § 6.01(a) (Vernon
2003).  Possession is a voluntary act if
the possessor knowingly obtains or receives the thing possessed or is aware of
his control of the thing for a sufficient time to permit him to terminate his
control.  Id. § 6.01(b); Grantham
v. State, 116 S.W.3d 136, 143 (Tex. App.–Tyler 2003, pet. ref’d).  In cases involving unlawful possession of a
firearm by a felon, the reviewing court should analyze the sufficiency of the
evidence under the rules adopted for determining the sufficiency of the
evidence in cases of possession of a controlled substance.  Young v. State, 752 S.W.2d 137,
140 (Tex. App.–Dallas 1988, pet. ref’d).
The State must establish that the accused (1) exercised care, custody,
or control of the firearm and (2) was conscious of his connection with it.  See Grantham, 116 S.W.3d
at 143.  The State’s evidence, whether
direct or circumstantial, must establish that the accused’s connection with the
firearm was more than fortuitous.  See
Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).  When the firearm is not found on the accused’s
person or not in his exclusive possession, additional evidence must connect the
accused to the firearm.  Grantham,
116 S.W.3d at 143.  Numerous factors may
be considered in determining whether the accused’s connection with contraband
is more than accidental.  See, e.g., Lassaint
v. State, 79 S.W.3d 736, 740-41 (Tex. App.–Corpus Christi 2002, no
pet.).  The number of applicable factors
is not as important as the logical force they have in establishing the elements
of the offense.  Wallace v. State,
932 S.W.2d 519, 524 (Tex. App.–Tyler 1995, pet. ref’d).
Discussion
            Appellant argues that he jointly possessed the place
where the sheriff’s deputy found the pistol, a place equally accessible to both
Appellant and his wife.  No fingerprint
evidence connected Appellant to the weapon, and there is no direct evidence
that he had ever held it.  Appellant told
the officers that the pistol was in the house, conduct more suggestive of
innocence than guilt.  Moreover, the
stepson’s testimony provided direct evidence that he gave the pistol to
Appellant’s wife for safekeeping while the stepson was stationed in Alaska.
            There was evidence that Appellant’s wife had a shotgun,
which she kept beside the bed.  Chester
Webb testified that, during an argument, Appellant went into his house, got the
shotgun, and fired it from his porch in a demonstration of anger.  Previously, when questioned by Webb about his
having the shotgun in the house while still under parole supervision, he
replied, “It’s my _____  ______  house.”
Although the evidence indicates that the shotgun belonged to his wife,
the evidence also indicates Appellant exercised control over it.  The stepson’s pistol was not stored away for
safekeeping, but was in plain view in a linen closet next to the bedroom where
Appellant slept.  Appellant was familiar
with its color and caliber.  Given these
circumstances, the jury could reasonably infer that Appellant exercised “care,
custody, control, or management” of the pistol.
            Weighing the evidence against the appropriate standards
of review, we conclude the evidence is both legally and factually sufficient to
support Appellant’s conviction.
Appellant’s first and second issues are overruled.

            Ineffective Assistance of Counsel
            In his third issue, Appellant contends that his trial
attorney’s performance fell below prevailing
professional norms in fourteen instances, and that he therefore did not
receive effective assistance of counsel.
Standard of Review
            The standard for testing claims of ineffective assistance
of counsel is set out in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted for Texas constitutional
claims in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim.
App. 1986).  To prevail on his claim of
ineffective assistance, an appellant must show that his attorney’s
representation fell below the standard of prevailing professional norms, and
that there is a reasonable probability that, but for the attorney’s deficiency,
the result of the trial would have been different.  Tong v. State, 25 S.W.3d 707,
712 (Tex. Crim. App. 2000).  A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.  Id.  The same test is applied in weighing claims
of ineffectiveness against both appointed and retained counsel.  Hurley v. State, 606 S.W.2d
887, 890 (Tex. Crim. App. [Panel Op.] 1980).
            Our review of counsel’s representation is highly
deferential; we indulge a strong presumption that counsel’s conduct falls
within a wide range of reasonable representation.  Strickland, 466 U.S. at 689,
104 S. Ct. at 2065; Tong, 25 S.W.3d at 712.  This court will not second guess through
hindsight the strategy of counsel at trial, nor will the fact that another
attorney might have pursued a different course support a finding of
ineffectiveness.  Blott v. State,
588 S.W.2d 588, 592 (Tex. Crim. App. 1979).
That another attorney, including appellant’s counsel on appeal, might
have pursued a different course of action does not necessarily indicate
ineffective assistance.  Harner v.
State, 997 S.W.2d 695, 704 (Tex. App.–Texarkana 1999, no pet.).  Any allegation of ineffectiveness must be
firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness.  Thompson
v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
            In order to render reasonably effective assistance, an
attorney must have a firm command of the facts of the case and the governing
law.  Ex parte Welborn, 785
S.W.2d 391, 394 (Tex. Crim. App. 1990); Ex parte Lilly, 656
S.W.2d 490, 493 (Tex. Crim. App. 1983).  “It
may not be argued that a given course of conduct was within the realm of trial
strategy unless and until the trial attorney has conducted the necessary legal
and factual investigation which would enable him to make an informed rational
decision.”  Wellborn, 785
S.W.2d at 393 (citing Ex parte Duffy, 607 S.W.2d 507, 526 (Tex.
Crim. App. 1980)).
Discussion
            Appellant first complains that his attorney demonstrated
ineffective assistance by asking Detective Ira Earls questions on cross
examination about what Appellant told him about the ownership of the guns in
the house.  This allowed the State to
introduce Appellant’s prior murder conviction for impeachment as if Appellant
has been a witness.  See Tex. R. Evid. 806.
            Detective Earls testified that he interviewed Appellant
about the murder of his wife.  In his
testimony, Detective Earls told the jury that, during the interview, Appellant
had informed him that there were two firearms in the house.  On cross examination, Appellant’s counsel
asked if Appellant said who owned the guns in his house.  Detective Earls could not recall what
Appellant had said about the ownership of the pistol, but he did recall that
Appellant had told him the shotgun “was purchased by his wife.”
            The presence of the guns in the house was undeniable and
never a contested issue.  The only
reasonable defense strategy and the one Appellant’s counsel pursued throughout
the trial was to acknowledge the presence of the firearms in the house but to
demonstrate the paucity of evidence that Appellant owned or possessed
them.  Counsel was faced with foregoing
the best evidence of his lack of ownership or running the risk that the trial
court would allow Appellant’s credibility to be impeached with a thirty year
old conviction.  We do not believe
counsel’s choice was unreasonable.
            Next Appellant contends his counsel was ineffective in
failing to object that the prior conviction was too remote to be used for
impeachment.  However, the record shows
that counsel did object on this ground.
            Appellant also complains that his counsel failed to
object on the ground of relevance to the admission into evidence of the
gruesome photographs of the corpse of Appellant’s wife.  The objection was raised and ruled on by the
trial court.
            Appellant next maintains his counsel was deficient in
that he “lost control of his ability to effectively defend [him] because he had
suffered so many setbacks concerning the admission of evidence.”  The one example in the record that Appellant
mentions as illustrating loss of control shows zealous advocacy and perhaps
annoyance, but no more.  Appellant cites
no legal authority.  This subissue had
been inadequately briefed and presents nothing for review.  See Tex.
R. App. P. 38.1(h).
            Appellant complains further that his counsel was
ineffective, because the trial court found it necessary to admonish counsel to
refrain from making sidebar remarks.  The
record shows that the judge, outside of the hearing of the jury, told Appellant’s
counsel to allow the witness sufficient time to answer the question asked
before asking, “You don’t remember, do you?”
Counsel’s transgression was trivial.
The judge’s reproof was delivered out of the jury’s hearing.  A defendant is not entitled to perfect
counsel.  Bridge v. State,
726 S.W.2d 558, 571 (Tex. Crim. App. 1986).
An error so minor cannot constitute deficient performance.
            Appellant asserts his counsel demonstrated ineffective
assistance in asking a State’s witness if he liked Appellant, thereby opening
the door to the State’s introduction of evidence of an instance of extraneous
misconduct.
            During direct examination by the State, Chester Webb, the
first cousin of Appellant’s wife testified that he once saw a shotgun in plain
view in Appellant’s house.  Aware that
Appellant was still  on parole, he asked
Appellant if he was supposed to have “a gun out in the open like that.”  According to Webb, Appellant replied, “It’s
my ___ ___ house.”  In an effort to
demonstrate Webb’s bias against Appellant, counsel asked, “And you’d agree with
me, Mr. Webb, would you not, that you and James Smith aren’t the best of
friends?”  Webb replied, “No, we’re not.”  On redirect examination, the trial court
permitted the State to show, over Appellant’s objection, that at one time
Appellant became angry at Webb, went in his house and got a shotgun, and fired
it from the front porch while Webb hid behind the house.
            It is probable that counsel asked the question knowing
that animosity existed between Appellant and his wife’s cousin, and it is
equally probable that he would never have asked the question if he had known of
the shotgun incident.  But this is
surmise and not shown by the record.  The
record does not reflect how or when counsel learned of the hostility between
Webb and Appellant.   The record is
silent regarding counsel’s knowledge of this instance of Appellant’s
misconduct, or if he had the opportunity to learn of it before his cross
examination.  As is usually the case, the
record on direct appeal is not adequately developed for us to determine whether
the blame for the door opening question should be laid to counsel’s deficient
performance or to Appellant’s failure to reveal the incident to his attorney
before he cross examined Webb.  The record
is not sufficiently developed to overcome the strong presumptions of sound
trial strategy and reasonable assistance.
See Thompson, 9 S.W.3d at 813-14.
            Appellant next complains that his trial counsel was
ineffective in making an untimely objection to the testimony of an unnamed
detective, thereby failing to preserve error.
Four detectives testified.
Appellant’s subissue does not direct the court to where in the record
this occurred or the nature of the error waived by counsel’s untimely
objection.  The issue has been
inadequately briefed and presents nothing for review.  See Tex.
R. App. P. 38.1(h).
            Appellant next complains that after the trial court
allowed Detective Caldwell to give his opinion that Appellant murdered his
wife, his counsel’s cross examination made it clear to the jury that there was
insufficient evidence, despite the detective’s opinion, to charge Appellant
with murder.  He argues that by making it
clear that Appellant was unlikely to be charged with his wife’s murder, counsel
made it more likely that the jury would convict Appellant of illegal possession
of a firearm rather than let him “get away with murder.”  In our view, however, once the detective’s
opinion was introduced, counsel had no choice but to elicit the detective’s
acknowledgment that Appellant had never been charged in his wife’s murder and
that the State lacked the evidence to charge him.
            Appellant also maintains his counsel wrongly accused the
prosecutor of violating the witness rule instead of moving for a directed
verdict.  The record, however, discloses
a possible violation of the witness rule by the prosecutor, which was
subsequently satisfactorily explained in testimony.  Counsel did timely move for a directed
verdict.
            In his thirteenth subissue, Appellant urges that his
attorney’s ineffectiveness was demonstrated by his failure to offer defense
witnesses “and that it seemed obvious that counsel gave up his attempts to
defend Appellant.”  Appellant does not
name the witnesses counsel should have called or what testimony could have been
expected from them.  The record is
inadequate to demonstrate counsel’s ineffectiveness on this ground.
            Finally, Appellant argues his counsel’s ineffectiveness
is demonstrated by his disjointed closing argument to the jury, which was
interrupted by the trial court when he implied that the court had made an
improper evidentiary ruling.  Appellant
omits any citation to the record or legal authority.  Therefore, nothing is presented for
review.  See Tex. R. App. P. 38.1(h).
            On six occasions during bench conferences addressing
counsel’s objections to evidence regarding the murder of Appellant’s wife,
Appellant’s counsel told the court that he was not prepared to defend a murder
charge.  He argued that the admission of
evidence relating only to the murder charge rendered him unable to provide
effective assistance to Appellant.
Considered in their context, counsel’s statements were argument, not
admissions of ineffective assistance as Appellant alleges on appeal.
            Considering Appellant’s fourteen allegations both singly
and in aggregate, we conclude that no ineffective assistance by Appellant’s
counsel is shown.  Appellant’s third
issue is overruled.

Admission of Evidence
            In his fourth issue, Appellant contends the trial court erred
in admitting photographs of the corpse of Appellant’s murdered wife.
Standard of Review
            A trial court’s decision to admit or exclude evidence is
reviewed under an abuse of discretion standard.
Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002).  An abuse of discretion occurs when the trial
court acts arbitrarily or unreasonably, without reference to guiding rules and
principles.  Montgomery v. State,
810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
The trial court is given wide latitude in its decision and the reviewing
court should not reverse the judgment if the trial court’s evidentiary ruling
is “within the zone of reasonable disagreement.”  Torres, 71 S.W.3d at 760; Montgomery,
810 S.W.2d at 391.
Applicable Law
            “‘Relevant evidence’ means evidence having any tendency
to make the existence of a fact that is of consequence to the determination of
the action more probable or less probable than it would be without the
evidence.”  Tex. R. Evid. 401.  “Although
relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury. . . .”  Tex. R. Evid. 403.  Evidence of other offenses by the defendant
almost always satisfies the Rule 401 definition, because proof of criminal
propensity makes guilt at least slightly more probable than would be the case
without the evidence.  See Gilbert
v. State, 808 S.W.2d 467, 471 n.4 (Tex. Crim. App. 1991).  However, because evidence of a defendant’s
bad character traits possesses the potential for such a devastating effect on a
jury’s ability to view other evidence rationally, and is poor evidence of
guilt, a mandatory rule was created expressly for its exclusion.  Mayes v. State, 816 S.W.2d 79,
86 (Tex. Crim. App. 1991).  Rule 404(b)
provides that “[e]vidence of other crimes, wrongs or acts is not admissible to
prove the character of a person in order to show action in conformity
therewith.  It may, however, be admissible for other purposes, such as
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident. . . .”  Tex. R. Evid. 404(b).
            One of the other purposes for which evidence of character
conformity is admissible as an exception to Rule 404(b)’s bar of evidence of
other bad acts is “same transaction contextual evidence.”

Same
transaction contextual evidence is deemed admissible as a so-called exception
to the propensity rule where “several crimes are intermixed, or blended with
one another, or connected so that they form an indivisible criminal
transaction, and full proof by testimony, whether direct or circumstantial, of
any one of them cannot be given without showing the others [citation omitted].”

Mayes, 816
S.W.2d at 87 n.4.  Same transaction
contextual evidence is admissible under Rule 404(b)  “only to the extent that it is necessary to
the jury’s understanding of the offense.”
Pondexter v. State, 942 S.W.2d 577, 584 (Tex. Crim. App.
1996) (quoting England v. State, 887 S.W.2d 902, 915 (Tex. Crim.
App. 1994)).  “Such evidence is
admissible only ‘when the offense would make little or no sense without also
bringing in the same transaction evidence.”
Id.
            Same transaction contextual evidence must be distinguished
from general background evidence or “background contextual evidence” defined as
facts not bearing directly on the purely legal issues, but facts that merely
fill in the background of the narrative and give it interest, color, and
lifelikeness.  Mayes, 816
S.W.2d at 87.  In Mayes,
the court of criminal appeals concluded that background contextual evidence
offered only for the reason that it is “background evidence” and therefore
helpful to the jury is not admissible as one of the “other purposes” for which
evidence may be admitted under Rule 404(b).
Id. at 87-88.
Discussion
            The photograph in question shows that Appellant’s wife
was shot in face with a shotgun at close range.
Detective Rasco, through whom the photograph was introduced, agreed that
the photograph had nothing to do with the pistol recovered at the scene.  Considering the facts surrounding the offense
charged in the instant case, possession of a firearm by a convicted felon,
together with elements of that offense, we conclude that the photograph in
question had no tendency to make more probable or less probable any fact of
consequence to the determination of Appellant’s guilt.  If not apparent at the outset, it soon became
apparent that the State’s strategy was to implicate Appellant in the murder of
his wife, an offense extraneous to the charged offense.  It is equally clear that, as a part of that
strategy, the photograph was introduced for its inflammatory effect, not to
prove Appellant illegally possessed a pistol.
            Since the evidence is inadmissible under Rule 401, there
is no need for a Rule 403 or 404 analysis.
However, we note that the trial judge found the evidence contextual and
admitted it, after conducting the balancing test under Rule 403, as an
exception under 404(b).  But even if we
were to assume that the evidence satisfied Rule 401, the evidence would still
be inadmissible as contextual evidence.
            The evidence cannot be considered as same transaction
contextual evidence.  Appellant called
9-1-1 to report he had returned home to find his wife murdered.  The sheriff’s deputies testified that they
found her body when they arrived.  These
facts were appropriately in evidence to show why the deputies were admitted
into Appellant’s house in the first place, and as an essential part of the
narrative explaining the discovery of the primary offense.  But the introduction of the photograph could
have been easily avoided, and it contributed nothing to the jury’s
understanding of the charged offense.  See
Pondexter, 942 S.W.2d at 584.
It might be argued that the photograph was admitted only as background
contextual evidence, “to fill in the background of the narrative and give it
interest and color.”  See Mayes,
816 S.W.2d at 87.  However, the evidence
cannot be viewed as admissible “because of [its] salutary effects on the jury’s
comprehension of the offense in question [possession of a firearm].”  Id.  Its intended purpose, so successfully
exploited by its proponent, was to brand Appellant as a murderer.  This is not one of the purposes for which
evidence of extraneous offenses may be admitted under Rule 404(b).  The trial court erred in the admission of the
photograph.
            Under this issue, Appellant also urges that the trial
court erred in allowing testimony that a shotgun had been kept in the
house.  Appellant argues that he was on
trial for possessing a pistol, not a shotgun, and that the shotgun evidence
served only to connect Appellant to the shotgun murder of his wife.
            We believe the evidence that a shotgun had been kept in
Appellant’s house had relevance to the offense charged.  When the trial judge made his ruling, he was
aware that the State intended to introduce evidence that, during his
altercation with Webb, Appellant had gone into his house, retrieved a shotgun,
and fired it from the porch.  Appellant’s
access to other firearms, and his prior illegal use of one those weapons had
relevance beyond that argued by Appellant.
The trial court’s ruling was well within the zone of reasonable
disagreement, and we conclude the trial court did not err in its admission of
the testimony regarding the shotgun.
Harm Analysis
            We have held that the trial court erred in admitting the
photograph showing the body of Appellant’s wife shot in the face with a shotgun
at close range.  An error in the
admission of evidence should be disregarded unless it affected Appellant’s
substantial rights.  See Tex. R. App. P. 44.2(b).  A substantial right is affected when the
error had a substantial and injurious effect or influence on the jury’s
determination of its verdict.  King
v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).  An accused’s substantial rights are not
affected by the erroneous admission of evidence if the court, after examining
the whole record, has fair assurance that the error did not influence the jury
or had but a slight effect.  Solomon
v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001).
            Appellant contends the error is not harmless, because he
received the maximum sentence provided for the offense.  Although Appellant stipulated at the
beginning of the trial that he had been convicted of a felony and was still
under parole supervision at the time of the offense, the State was successful
in introducing evidence that Appellant’s prior conviction was for murder.  It is not unreasonable for a jury to return a
harsher sentence against a convicted murderer in possession of a firearm than
they would against one whose prior conviction was for a lesser felony.  Moreover, the jury heard other testimony equally
damaging and inflammatory.  Over Appellant’s
objection, the State asked Detective Caldwell, “[B]ased on your training and
experience, based on your investigation, who do you believe killed this lady?”  Detective Caldwell answered “James Smith.”  The prosecutor proceeded to ask, “Would that
be one and the same James Smith who was married to Mary Smith who’s shown shot
in State’s Exhibit Number 7?"
Detective Caldwell answered “yes.”
            The jury also heard Detective Caldwell testify that,
immediately after his wife’s murder, Appellant was calm and unemotional and
even laughed during the interview.  It
was probably unavoidable, given the bare facts Appellant reported in his 9-1-1
call, that the jurors, like the officers who came to investigate, would suspect
Appellant killed his wife.  And the State
was not reluctant to exploit that suspicion.
We have examined the whole record.
Given the mass of other devastating testimony, we conclude that the
photograph erroneously admitted had no effect or but a slight effect on the
jury’s determination of Appellant’s conviction or sentence.  The error was harmless.  Appellant’s fourth issue is overruled.

Disposition
            The judgment is affirmed.

                                                                                BILL BASS

                                                                                Justice

Opinion
delivered July 31, 2007.
Panel
consisted of Griffith, J., Hoyle, J., and Bass, Retired Justice, Twelfth Court
of Appeals, Tyler, sitting by assignment.

(DO NOT PUBLISH)


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             OCTOBER 2, 2009
                               No. 09-10132                 THOMAS K. KAHN
                                                                CLERK
                           Non-Argument Calendar
                         ________________________

                     D. C. Docket No. 08-60165-CR-WPD

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

ANTHONY DEHANEY,
a.k.a. Ewart Dehaney,
a.k.a. Ewart Anthony Dehaney,

                                                           Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                (October 2, 2009)

Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.

PER CURIAM:
      Alvin E. Entin, appointed counsel for Anthony Dehaney in this direct

criminal appeal, has filed a motion to withdraw on appeal, supported by a brief

prepared pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d

493 (1967). Our independent review of the entire record reveals that counsel’s

assessment of the relative merit of the appeal is correct. Because independent

examination of the entire record reveals no arguable issues of merit, counsel’s

motion to withdraw is GRANTED, and Dehaney’s convictions and sentences are

AFFIRMED.

                                          2


I •

                                                ~ ·

      UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                                Before
                                    YOB, KRAUSS , and BURTON
                                      Appe llate Military Judges

                                  UNITED STATES, Appellee
                                                 v.
                                 Specialist EMILY W. BUSCH
                                 United States Army, Appellant

                                        ARMY 20 100977

                             Headquarters, III Corps and Fort Hood
                               Jacqueline Emanuel, Mi litary Judge
                    Colonel Phillip N. Foster, Staff Judge Advocate (pretrial)
                    Colonel Stuart W. Risch, Staff Judge Advocate (post-trial)

      For Appellant: Lieutenant Colonel Imo gene M. Jamison, JA; Major Jacob D.
      Bashore, JA; Captain Kristin McGrory, JA (on brief) .

      For Appellee: Major Amber J. Roach, JA; Major Katherine S. Gowel, JA; Captain
      Daniel D. Maurer, JA (on brief).

                                         27 March 2013

                                     SUMMARY D ISPOSITION

      Per Curiam:

            A military judge si tting as a special court-martial, convicted appellant,
      pursuant to her plea, of aggravated assault by a means like ly to inflict grievous
      bodily harm in violation of Article 128, Uniform Code of Military Justice, 10 U .S.C.
      § 928 (2006) [here inafter UCMJ]. The mi litary judge sentenced appellant to a bad-
      conduct di sc harge, confinement for ten months, and reduction to the grade of E- 1.
      The convening authority approved the adjudged sentence.

             This case is before the court for review under Artic le 66, UCMJ. Appellant
      alleges that the post-trial processing of her case was unreasonable and prejudicial.
      We have considered the entire record , including those matters personall y raised by
      appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
      Though we do not find any actual prejudice to the appellant, we agree with appellant
      that the excessive post-trial delay in the processing of this case warrants relief.
                                      ..   ...

BUSCH- ARMY 20100977

       The parties dispute both the nature and length of the post-trial delay.
Appellant contends that the government took 317 days to process her 158 page
record of trial. Appellant also notes that she complained about the delay when she
submitted her Rule for Courts-Martial (R.C.M.) 1105 matters to the convening
authority. The government, on the other hand, calculates 262 days between
sentencing and action by the convening authority. Further, the government has
submitted two affidavits from the staff judge advocate and the senior court reporter
to explain the post-trial delay. In sum, these affidavits state that appellant's post-
trial delay was primarily due to personnel sho rtages and high caseload. Taking into
consideration all delay attributable to the defense, the time from sentence to action
attributable to the government is certainly more than 250 days.

        Claims of unreasonable post-trial delay are reviewed de novo. United States
v. Arriaga, 70 M.J. 51, 55 (C.A.A.F. 20 12) (citing United States v. Moreno, 63 M.J.
129, 135 (C.A.A.F. 2006)). Though we find no prejudice as a result of the excessive
delay, the court must sti ll review the appropriateness of the sentence in light of
unjustified dilatory post-trial processing. UCMJ art. 66(c). See generally United
States v. Toohey, 63 M.J. 353, 362-63 (C.A.A.F. 2006); United Stales v. Moreno, 63
M.J. 129, 143 (C.A.A.F. 2006); United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F.
2002); United States v. Ney, 68 M.J. 613, 616-17 (Army Ct. Crim. App. 2010). We
appreciate the government offering an explanation for the delay by way of affidavits;
however under the circumstances of this case, where no such explanation was
offered at the time of action, where appellant complained of such delay in her post-
trial submission, where appe llant enjoyed no benefit such as deferral or waiver of
automatic forfeitures, and where the government attestations do not justify taking
more than 250 days to process a 158 page record of a special court-martial
ultimately involving one charge and one specification of no great complication,
relief is warranted. See Moreno, 63 M.J. at 137; Tardif, 57 M.J. at 224.

       The findings of gu ilty are AFFIRMED. After considering the entire record ,
the court affirms only so much of the sentence as provides for a bad-conduct
discharge, confinement for nine months, and reduction to the grade of E-1. All
rights, privileges, and property, of which appellant has been deprived by virtue of
that portion of her sentence set aside by the decision, are ordered restored. See
UCMJ arts. 58b(c) and 75(a).

                                        FOR THE COURT:

                                        KENNETH
                                        COL, JA
                        •               Acting Clerk of Court

                                            2


4 U.S. 47 (____)
4 Dall. 47
Ludlow, Plaintiff in Error,
versus
Bingham.[*]
Supreme Court of United States.

*49 The case was argued by Ingersoll and Dallas, for the plaintiff, and by Lewis and E. Tilghman, for the defendant.
*61 After consideration the unanimous opinion of the COURT was delivered, by the Chief Justice, who, having stated the case, proceeded as follows:
M`KEAN, Chief Justice.
The first inquiry, which it is necessary to pursue, is, where was the note in controversy made, in Pennsylvania, or in New-York? For, whether the act of assembly, relating to promissory notes, is to be introduced, or excluded, in forming our judgment, depends upon the answer, that shall be given to this preliminary question.
It appears, then, that, although the note was signed in Philadelphia, it was not delivered in Pennsylvania; but that the delivery was made by the order, or direction, of Henry Knox, the payee, to William Duer in the city of New-York, in pursuance of a contract, and for a valuable consideration. It is certain, that the bare signing of a note will not give it efficacy. It may be signed with a view to deliver it to the payee, on his complying with some previous stipulation; so that in case of a refusal, it would become useless, and might be cancelled by the drawer. A note is not, therefore, obligatory and valid, until it has been actually delivered to the party, for whose use it is drawn; and as it receives its life, existence, and negotiable character, at the place where it is so delivered, the law of that place must regulate all its subsequent operations. Hence, we consider the present note, as having taken effect in New-York, as being liable to the lex loci of that state (whether depending on positive statutes, or the adoption of the general commercial law) and as exempt from the provisions of our act of assembly, by which an indorsee is liable to all the equity, that the drawer could enforce against the payee.
The note having been thus paid, or delivered, in New-York, was deemed by the law of that state to be as negotiable as a foreign bill of exchange; and it is the nature of a bill of exchange, when indorsed in blank, to pass from hand to hand, by mere delivery, like bank notes payable to bearer. It is true, that the negotiability of the bill may be restrained by the qualified terms of an indorsement; but there must be express words to produce such an effect. In the present case, there was no restraint upon *62 the negotiability of the note; and in a due and fair course of circulation, it was delivered to Duer, he sold it to a bonâ fide purchaser, that purchaser sold it to others, till, at last, it became the property of the plaintiff. While, however, it was in the hands of Duer, an attachment issued at the suit of his creditors, and the drawer of the note was summoned as garnishee.
And here the second great question arises, whether, under these circumstances, the money due at that time, but not payable till long after, on a negotiable note, could be attached as the property of Duer, so as to defeat a subsequent purchaser, bonâ fide, and for a valuable consideration? In England, I believe, there would be no hesitation in deciding, that it could not. On the paper credit of that nation, much of its power and prosperity, (if not its very existence) will be found to depend; and, therefore, every thing that can impede, or injure, the circulation of bills of exchange, promissory notes, and bank notes, is anxiously guarded against. The situation of this country, however, is not the same; so that the legislature of Pennsylvania has not found it necessary to hold in equal respect the negotiability of promissory notes. When the act of assembly was passed, promissory notes were little used; they were given for small debts; and they seldom passed out of the hands of the payee before payment. The object of the act was, simply, to enable the indorsee to sue the drawer in his own name; but in giving this benefit, it was expressly provided, that he should recover no more, than was due at the time of the indorsement. This, therefore, lets in the equitable claims of the drawer against the payee, when he is sued by the indorsee; and even in England, there is no doubt, the consideration of a note may be inquired into, in an action between the payee and the drawer.
The present case, however, arises from a commercial transaction in the city of New-York, where the note was regarded in the light of a foreign bill of exchange. There is no judgment, or authoritative dictum, to be found in any book, that money due upon such a negotiable instrument, can be attached before it is payable; and in point of reason, policy, and usage, as well as upon principles of convenience and equity, we think it would be dangerous and wrong to introduce and establish a precedent of the kind. To adjudge that a note, which passes from hand to hand as cash; on which the holder may institute a suit in his own name; which has all the properties of a bank note payable to bearer; which would be embraced by a bequest of money; and which is actually in circulation in another state; should be affected in this way, by a foreign attactment, would be, in effect, to overthrow an essential part of the commercial system, and to annihilate the negotiable quality of all such instruments.
It has been said, that the purchaser of the note (toties quoties) was bound to inquire into its validity, by applying to the drawer before he bought it. But I cannot perceive the propriety, nor, indeed, *63 the utility, of imposing such a duty in this, or any similar, case. The distance between the place of the drawer's residence, and the place of the note's circulation; and the frequency of the transfers of negotiable notes, payable at long dates; would render such a course highly inconvenient, if not impracticable; while the information to be derived from it, could only assure the purchaser, that an attachment had not issued at the very moment of his application; but could not protect him from an attachment which might issue in less than an hour afterwards, and sooner than his purchase could be accomplished.
Upon the whole, we are, unanimously, of opinion, that the attachment cannot be sustained; and that the bearer of the note on the day of payment, is entitled to recover the money from the drawer. The judgment for the defendant must, therefore, be reversed; and judgment entered for the plaintiff.
SMITH, Justice.
The opinion of the Court is certainly unanimous on the points that have been stated; but I wish it to be remarked, that my concurrence rests entirely on the particular circumstances of this case. The delivery in New-York, which gave effect to the note, and introduced the law of that state as our guide, is, exclusively, the ground of my assent.
ADDISON, Justice.
To me, it would have made no difference, had the delivery and circulation of the note been entirely in Pennsylvania. It is expressed in commercial form, and was negotiable upon commercial principles. On general grounds, therefore, as well as for the particular reasons that have been assigned, I think the judgment of the Court is right: and I should be surprised to find any doubt upon the subject in a great commercial city like Philadelphia.
SHIPPEN, Justice.
It is evident, that on the abstract question, the Court do not agree; nor is it necessary that they should, as we are unanimous in the judgment pronounced, upon the grounds peculiar to this case. If, however, I were called upon to give an opinion, I should incline to the one expressed by Judge Addison.
The judgment below reversed; and judgment to be entered for Daniel Ludlow, the plaintiff in error.[(2)]
NOTES
[(2)]  The question involved in this cause had been argued in the Supreme Court; but before any opinion was given by the Judges, and in order to avoid delay, a judgment was entered, by consent, for the defendant, on which the present writ of error was brought, with an agreement, that the decision of the High Court of Errors and Appeals, should, also, be binding in the cases of M`Evers v. Bingham, Service v. Bingham, and M`Crea v. Bingham, all depending in the Supreme Court on the same facts. The present report comprises the arguments in both Courts.
[]  A question arose, whether this Court should enter the judgment for the plaintiff in error, or merely remit the record to the Supreme Court, that the judgment might be entered there? In the present case, a decision was immaterial, as Mr. Bingham, being a mere stake-holder, was ready, at once, to pay the money, on the opinion which had been delivered; but as a precedent it was thought important, and the Court kept the point under advisement till the next adjourned session.