concurring in part, dissenting in part. While I agree that there was substantial evidence to support appellant Michael Daniels’s conviction for premeditated and deliberated capital murder, I disagree with the majority opinion when it concludes that the circuit court erred in allowing the jury to consider the question of whether Daniels was recovering a gambling loss or committing a theft when he stabbed the victim, James Williams. Citing Davidson v. State, 200 Ark. 495, 139 S.W.2d 409 (1940), and Ark. Code Ann. § 16-118-103(a)(l) (Repl. 2006),1 the majority reasons that, under Arkansas law, a person who loses money gambling cannot be found guilty of robbery, even though he or she may use force in the recovery of that money. The logic of Davidson is seriously questionable, but this court need not address whether the 1838 law is still the law and public policy in Arkansas.
Here, Daniels’s version of what led to the stabbing death of Williams centered on Daniels’s claim that he could not have been found guilty of aggravated robbery, because he was merely recovering a gambling loss. One commits aggravated robbery if he “commits robbery as defined in § 5-12-102, and . . . inflicts or attempts to inflict death or serious physical injury upon another person.” Ark. Code Ann. § 5-12-103(a)(3) (Repl. 2006). Aperson commits robbery “if, with the purpose of committing a felony or misdemeanor theft . . . , the person employs or threatens to immediately employ physical force upon another person.” Ark. Code Ann. § 5-12-102(a) (Repl. 2006). And finally, a person commits theft when he:
(1) Knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of any interest in, the property of another person, with the purpose of depriving the owner thereof; or
(2) Knowingly obtains the property of another person, by deception or by threat, with the purpose of depriving the owner thereof.
Ark. Code Ann. § 5-36-103(a) (Repl. 2006).
Under the felony-murder statute, the State must first prove the felony, so the felony becomes an element of the murder charge. See Woods v. State, 363 Ark. 272, 213 S.W.3d 627 (2005) (where jury acquitted defendant of the underlying felony, his capital-felony-murder conviction could not stand); Meadows v. State, 360 Ark. 5, 190 S.W.3d 634 (2004). Daniels argues — and the majority apparently agrees — that because'the evidence in this case only shows that he was recovering his own money, the State could not prove that he committed a theft, which is an element of the aggravated robbery charge.
In adopting Daniels’s argument, the majority ignores the evidence before the jury. My problem with the majority opinion is its conclusion that the trial court erred in allowing the jury to consider whether Daniels was, in fact, attempting to recover a gambling debt. The majority states that “[t]he circuit court . . . found that the question of whether the gambled money belonged to Daniels or to Williams was one of fact for the jury.” Relying on Davidson, the majority states that the circuit court’s ruling was error, “because the law in Arkansas is that recovering gambling losses is not theft.” However, the court cites no authority that would support a conclusion that the trial court erred in leaving this factual issue for the jury to decide.
Here, there were disputed facts as to whether the money “recovered” by Daniels was a gambling debt. For example, eyewitness Reggie Conner testified that he heard Daniels tell Williams that he “wanted his money back” before the stabbing occurred. However, Conner also testified that, while Williams would frequently play games of “three-card monty” with customers of the convenience store, he did not play the game for money, saying that Williams “didn’t offer nobody nor ask nobody you want to play for some money or anything.” In addition, although Daniels indicated that he had lost twenty dollars to Williams, Detective Don Hollingsworth of the Warren Police Department testified that he found thirty dollars in cash on Daniels following his arrest. Indeed, the majority of the evidence supporting Daniels’s claim that he was trying to take back money that he had lost gambling was Daniels’s own testimony, and a jury is not required to believe a defendant’s self-serving testimony. See, e.g., McKenzie v. State, 362 Ark. 257, 208 S.W.3d 173 (2005); McDuffy v. State, 359 Ark. 180, 196 S.W.3d 12 (2004).
Given the controverted state of the evidence regarding the issue of whether Daniels was actually attempting to recover a gambling debt, this was surely a question of fact that the trial court properly submitted to the jury for resolution. See, e.g., Morgan v. State, 359 Ark. 168, 195 S.W.3d 889 (2004) (where evidence as presented created a fact question, it was properly decided by the juij); Raynor v. State, 343 Ark. 575, 26 S.W.3d 215 (2001) (when evidence presented a question of whether witness participated in murder as accomplice whose testimony would require corroboration, such a question of fact was appropriate for determination by jury). For the majority to conclude, without citation to authority, that the trial court should not have submitted this question to the jury is baffling to me. For the reasons set out above, I dissent.
This court briefly addressed the background of this statute in Christian Civic Action Community v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994), writing as follows:
In 1838, the general assembly made illegal many forms of gambling. Many of the revised statutes of 1838 prohibiting various forms of gambling are brought forward in today’s statutes. See Ark. Code Ann. §§ 5-66-101 to -119 (Repl. 1993). The public policy against gambling, expressed by the legislature in 1838, was so strong that a losing bettor was authorized to file suit to recover his losses, but a winning bettor was prohibited from filing suit to collect his winnings. That public policy set by the general assembly is still in force. See Ark. Code Ann. § 16-118-103(a) & (b)(1) (1987).
McCuen, 318 Ark. at 255, 884 S.W.2d at 613.