Bates v. State

• Decision Date: 27 April 1895
• Citation: 30 S.W. 890,60 Ark. 450
• Parties: BATES v. STATE
• Court: Arkansas Supreme Court

30 S.W. 890

60 Ark. 450

BATES v. STATE

Supreme Court of Arkansas

April 27, 1895

Appeal from Monroe Circuit Court, JAMES S. THOMAS, Judge.

Judgment reversed and cause remanded.

J. H Harrod and Thos. C. Trimble for appellant.

1. A witness cannot be impeached by showing that he has been accused of other crimes. Sand. & H. Dig. sec. 2959. Nor by proving that he has been indicted for larceny. 34 Ark. 257.

2. The record in this case shows that appellant was indicted by a grand jury composed of fifteen men. The indictment should have been quashed.

E. B Kinsworthy, Attorney General, and F.T. Vaughan for appellee.

1. It was not error to permit the question to be asked. Thomps. on Trials, secs. 649, 650-1 and cases cited; 56 Ark. 4; 58 id 473; lb. 513; 94 Ala. 68. The cases of 34 Ark. 257 and 43 Ark. 99 do not apply where the defendant himself testifies in his own behalf. Whart. Cr. Ev. secs. 430, 431-2; 1 Thomps. Trials, secs. 649, 650, 651; 135 N.Y. 663; 2 West. 788; Underhill on Ev. p. 497, sec. 346; 93 Mich. 38; 13 So. 229; 16 Mich. 40; 13 So. 681; 22 S.W. 1039; 33 P. 256.

2. It is apparent that the clerk failed to copy the name of one grand juror. When the record states that a jury of twelve was impaneled, but contains the names of eleven only, this court will presume that the name of one juror was omitted by mistake. 8 Ark. 574. But the certiorari shows sixteen grand jurors. This court will presume that those whose names are not mentioned were excused. 54 Ark. 611.

OPINION

HUGHES, J.

The appellant was indicted for and convicted of larceny, and appealed to this court. On the trial the appellant testified in his own behalf, and was asked by the counsel for the State, on cross-examination, if he had not been in-dieted three times in the Lonoke circuit court for hog stealing. The appellant objected to the question, and the court overruled the objection, whereupon the appellant answered: "Yes, but I was acquitted each time, and one time the judge ordered the case nol prossed." etc., whereupon the court instructed the jury that they must be governed entirely by the evidence. The court instructed the jury to consider it in determining the credibility of defendant. Was there prejudicial error in permitting this question, and requiring the defendant to answer? "When a defendant in a criminal case becomes a witness in his own behalf, he is subject to cross-examination and impeachment, like other witnesses." McCoy v. State, 46 Ark. 141; Lee v. State, 56 Ark. 4, 19 S.W. 16; Holder v. State, 58 Ark. 473, 25 S.W. 279. And it has been held more than once in this State that "a witness cannot be impeached, nor his testimony impaired, by proving that he has been indicted for larceny." Anderson v. State, 34 Ark. 257; Carr v. State, 43 Ark. 99.

While it is not necessary to go so far in this case, we think that where the defendant in a criminal case is a witness in his own behalf, it is improper and unfair to ask him if he has been indicted for felony previously. An indictment raises no legal presumption of guilt against a defendant. If it be wrong to ask such a question of a witness not himself on trial, it is in our opinion much more so where the defendant is the witness himself in his own behalf. None of the infamy that attaches to conviction attaches to the mere accusation. A person charged with a crime, testifying in his own behalf, to use the language of Chief Justice Church of the Court of Appeals of New York, "goes upon the stand under a cloud; he stands charged with a criminal offense, not only, but is under the strongest possible temptation to give evidence favorable to himself. His evidence is therefore looked upon with suspicion and distrust, and if, in addition to this, he may be subjected to a cross-examination upon every incident of his life, and every charge of vice or crime which may have been made against him, and which have no bearing upon the charge for which he is being tried, he may be so prejudiced in the minds of the jury as frequently to induce them to convict, upon evidence which otherwise would be deemed insufficient. *** No rule of law is violated in requiring that, to entitle questions to be put to accused persons which are irrelevant to the issue, and are calculated to prejudice him with the jury, they should at least be of a character which clearly go to impeach his general moral character, and his credibility as a witness." People v. Crapo, 76 N.Y. 288. In the People v. Gay, 7 N.Y. 378 Jewett, J., said: "The single fact that he (the witness) had been complained of and held for trial for the commission of a...