Bohannon v. State

• Decision Date: 15 October 1923
• Docket Number: 181
• Citation: 254 S.W. 683,160 Ark. 431
• Parties: BOHANNON v. STATE
• Court: Arkansas Supreme Court

254 S.W. 683

160 Ark. 431

BOHANNON v. STATE

No. 181

Supreme Court of Arkansas

October 15, 1923

Appeal from Sebastian Circuit Court, Fort Smith District; John E Tatum, Judge; affirmed.

Judgment affirmed.

Chew & Ford, for appellant.

The defendant was entitled to have twenty-four jurors from whom to select the jury to try the case before being compelled to exercise any of her challenges. C. & M. Digest, §§ 3144-45, 3146. The giving by the court of a part of C. & M Digest, § 804, over appellant's objections, was reversible error. It was not only equivalent to an expression of OPINION that the defendant was guilty, but this court has expressly declared that the disposition to be made of a defendant, if convicted, is not determined, nor intended to be known, until after his conviction. 84 Ark. 292. See also 155 Ark. 479; 154 Ark. 297. The court volunteered this instruction. 156 Ark. 592.

J S. Utley, Attorney General; John L. Carter, Wm. T. Hammock and Darden Moose, Assistants, for appellee.

1. Appellant was not prejudiced by the failure to comply with C. & M. Digest, §§ 3144-3145, in that her failure to exercise any peremptory challenges was an implied admission that the twelve jurors on the regular panel were unobjectionable. 93 Ark. 173; 50 Ark. 492; 91 Ark. 585; 97 Ark. 132; 133 Ark. 88; 125 Ark. 282.

2. There was no prejudice in permitting the prosecuting attorney to inquire of appellant, when testifying as a witness, whether or not Raymond Mitchell was a married man, and whether she knew of that fact at the time he gave her the check to cash. It went to her credibility. 152 Ark. 380; 146 Ark. 206; 53 Ark. 387; Clayton v. State, 159 Ark. 592; 156 Ark. 525; 141 Ark. 504; 150 Ark. 220; 114 Ark. 239; 153 Ark. 1.

3. The testimony as to the four other checks of $ 25 each found in possession of appellant, was admissible as tending to show guilty knowledge or intent. 72 Ark. 597. See also 75 Ark. 433; 81 Ark. 81; 87 Ark. 22; 92 Ark. 482; 94 Ark. 210; 110 Ark. 229; 130 Ark. 127; Id. 363.

4. There was no error in giving instruction 2, by the court, being that part of C. & M. Digest, § 804, which was pertinent. See rehearing opinion in Pittman v. State, 84 Ark. 292; 156 Ark. 597.

OPINION

HUMPHREYS, J.

Appellant was indicted, tried, and convicted in the Sebastian County Circuit Court, Fort Smith District, for uttering a forged check on the First National Bank of Van Buren, Arkansas, to Hunt Dry Goods Company, and, as punishment therefor, adjudged to serve a term of two years in the State Penitentiary. From the judgment of conviction she has prosecuted an appeal to this court.

Appellant's first assignment of error for a reversal of the judgment is the trial court's refusal to order the sheriff to summon twelve bystanders, so as to complete a full panel of twenty- four men from which to select a jury to pass upon her guilt or innocence. When her case was called, there were only twelve men in the jury-box from the regular panel. Appellant insists that, under §§ 3144-3146 of Crawford & Moses' Digest she had the right to be confronted with a full panel of 24 men, before she could be called upon to exercise any one of her twenty peremptory challenges. Our construction is that it is only necessary to have twenty-four names in the box when a drawn jury is not waived. In this case appellant waived a drawn jury. The waiver was tantamount to saying to the court that there was no necessity for filling up the panel until the qualification of each of the twelve jurors in the box was passed upon, and until the State and appellant should exercise such number of their peremptory challenges as each might desire. The refusal of appellant to challenge any one of the twelve was an implied admission that each was unobjectionable. It would have been a useless thing to have summoned twelve additional men to serve as jurors where the twelve already in the box were unobjectionable.

Appellant's next assignment of error for a reversal of the judgment was in permitting her to be asked, on cross-examination, whether Raymond Mitchell, who gave her the check to cash, was a married man. It is true this was a collateral matter not tending to show whether the check was a forgery, and, if so, whether appellant knew it; but, even so, the question was permissible as a test of her credibility as a witness, as she had been traveling and associating freely with him. This court said, in the case of Bogue v. State, 152 Ark. 378, 238 S.W. 64, "it is within the well established rule to inquire of an accused, on cross-examination, touching his illicit relation as a test of his credibility." This procedure is a well recognized method of impeaching a witness. Pearrow v. State, 146 Ark. 201, 225 S.W. 308; Turner v. State, 153 Ark. 40, 239 S.W. 373.

Appellant's next assignment of error for a reversal of the judgment is the admission of evidence showing that appellant had four other checks of $ 25 each, similar to the check uttered, in her possession at the time she cashed the check in question. As the evidence failed to show that appellant attempted to cash either of the four checks, it is contended that the admission of the evidence was tantamount to proving another and separate offense in order to secure a conviction of uttering a forged instrument. We do not think so. The checks were similar, and she had possession of all of them at the time she uttered one of them. Guilty knowledge or intent was essential to the crime charged against appellant, and her possession of four other checks, similar to the one uttered, was admissible to show whether she uttered the check in question in good or bad faith. In the case of Howard v. State, 72 Ark. 586, 82 S.W. 196, this court said: "Possession of other like counterfeits or forgeries more or less distinctly implies knowledge, and is admissible in evidence against the defendant." The rule thus announced is supported by the following authorities: Greenleaf, Ev. § 53; Wharton, Crim. Ev. (8th ed). §§ 31-46; Clark, Cr. Pro., p. 518; 1 Bishop, New Cr. Pro., § 1126.

Appellant's next assignment of error for a reversal of the judgment is the alleged insufficiency of the evidence to support the verdict. J. T. Mitchell's name was signed to the check and it was uttered by appellant. She had four other checks similar to it in her possession at the time. The payee in the check was Raymond Mitchell, the grandson of J. T. Mitchell. There is testimony in the record to the effect that appellant represented herself to be the payee named in the check when she cashed it. J. T. Mitchell and his wife, Elenor Mitchell, testified that Raymond had no authority to issue the check, and that the handwriting was not that of Raymond. This evidence was substantial, and sufficient to justify the ...