Bowling v. State

• Decision Date: 22 December 1958
• Docket Number: No. 4924,4924
• Citation: 229 Ark. 876,318 S.W.2d 808
• Parties: James A. (Dock) BOWLING, Appellant, v. The STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 808

318 S.W.2d 808

229 Ark. 876

James A. (Dock) BOWLING, Appellant, v. The STATE of Arkansas, Appellee.

No. 4924.

Supreme Court of Arkansas.

Dec. 22, 1958.

Bryan J. McCallen, Corning, Claude F. Cooper and Gene Bradley, Blytheville, for appellant.

Bruce Bennett, Atty. Gen., and Bill J. Davis, Asst. Atty. Gen., for appellee.

ROBINSON, Justice.

The appellant was convicted in Clay County, Arkansas, on the charge of possessing stolen property exceeding in value the sum of $35. The information charged, also, that he had previously been convicted of a felony in Oklahoma and had been convicted of a felony in the District Court of the United States for the Eastern District of Illinois. The jury was unable to agree on the punishment, and the court fixed the penalty by sentencing the defendant to ten years in the penitentiary.

On appeal appellant urges several points for reversal, one of which is that the evidence is not sufficient to sustain the conviction. There is no contention that the defendant did not have in his possession merchandise which had been stolen, consisting of several guns, but appellant does maintain that there is no substantial evidence from which an inference can be drawn that he knew the guns had been stolen. In view of the fact that the judgment must be reversed on other grounds, there is no need to abstract the evidence here. Suffice it to say that in our opinion there is substantial evidence to sustain the verdict.

Appellant contends that the State was permitted to impeach its own witness, Charles Skaggs. The court permitted the prosecuting attorney to cross-examine this witness, on the theory that the prosecution was surprised by his testimony. Apparently the cross-examination included the reading from documents by the prosecuting attorney in the presence of the jury. The question is whether the cross-examination went so far that it can be said to amount to impeachment, but it is not necessary to dwell on this point, because in a new trial there will be absent the element of surprise giving the State's attorney the right to cross-examine a State's witness.

The jury was unable to agree on the punishment. Therefore, on the authority of Ark.Stat. § 43-2306, the court assessed the punishment by sentencing the defendant to ten years in the penitentiary. Appellant contends that the statute authorizing the court to fix the punishment is contrary to several provisions of the Constitution. But we do not reach the constitutional question. The rule is well establishment that the Constitution is not construed unless the cause cannot be disposed of on any other ground. Bailey v. State, Ark., 313 S.W.2d 388.

On cross-examination, over the objection and exception of defendant's counsel, the defendant was asked if he had been charged with other crimes. This was error. In Reddell v. State, 216 Ark. 197, 224 S.W.2d 812, we said: 'It is well settled in Arkansas that the defendant as a witness may not be questioned about mere previous arrests, indictments, or charges, filed against him. The mere fact that a charge has been made, as distinguished from the doing of a criminal act or a conviction therefor, tends to prove nothing as to the credibility of the witness. Johnson v. State, 161 Ark. 111, 255 S.W. 571; Wray v. State, 167 Ark. 54, 266 S.W. 939; Jutson and Winters v. State, 213 Ark. 193, 209 S.W.2d 681. And see 3 Wigmore, Evidence (3d Ed., 1940) section 980a.'

After his arrest on November 24, 1956, the defendant's case was set for trial the following January. The case was continued to April 22nd. At that time the defendant failed to appear, and his bond was forfeited. In explaining his absence, on April 22nd, he stated that he was in jail at Kennett, Missouri, from February 1st to July 16th. The fact that the bond had been forfeited was wholly immaterial, as was the reason for the defendant's absence. Neither sheds any light on the issue of the guilt or innocence of the accused, and we do not think the defendant's effort to explain his absence by stating he was in jail in Missouri opened the door for the prolonged cross-examination of the defendant about other charges. The first fifteen pages of the record given to cross-examination are devoted almost exclusively to questioning the defendant about other offenses and other charges. Of course, we have held that a witness (and this includes the defendant who takes the stand in his own behalf) can be asked on cross-examination about acts embracing moral turpitude, for the purpose of shedding light on his credibility. But the rule is universal that a witness cannot be asked if he has been indicted or charged with an offense. 'Nor should the court permit a question whether the witness has ever been arrested, incarcerated or imprisoned, accused, charged with, informed against, tried without being convicted, or indicted, or prosecuted for crime.' Underhill's Criminal Evidence, 5th Ed., Vol. 1, § 244.

It would unduly extend this opinion to set out the fifteen record pages of cross-examination above mentioned, but a liberal portion of it is as follows:

'Q. Doc, how old are you? A. 38 years old.

'Q. Where were you born? A. Clinton, Arkansas.

'Q. Where is Clinton? A. Van Buren County.

'Q. When did you move to Missouri? A. In 1941 when I came to Missouri.

'Q. You moved to Missouri in 1941? A. Yes, sir.

'Q. Were you ever arrested or convicted of anything in Arkansas before you moved to Missouri? A. No, sir.

'Q. You had never been charged over there with anything? A. No, sir.

'Q. Are you sure of that? Public drunkenness or anything else? A. No, sir.

'Q. You moved from Clinton right to Missouri? A. No, sir, moved from Clinton to Henrietta, Oklahoma.

'Q. Is that where you stole the cattle? A. Where I was supposed to have stolen cattle. [Previously the State had proved the conviction for stealing domestic animals.]

'Q. You weren't guilty of that either? A. No, sir.

'Q. But you were tried by a jury? A. Yes, sir.

'Q. And found guilty by the jury? A. Yes, sir.

'Q. You started serving time when? A. I believe the spring of '40.

'Q. When did you get out, February '41? A. I believe that's right.

'Q. When did you go in service? A. January 5, 1942.

'Q. You were in service about three years? You got out what month in '45? A. I got out October 12th.

'Q. October 12, 1945. How many days was it before you stole the car? A. I couldn't be exact. [In its case in chief, the State had proved this offense.]

'Q. How many days did you have the car before you were arrestd? A. I think maybe over night, something like that.

'Q. If you were arrested 11/17/45, then you stole it on the 16th, didn't you? Did you stated the car or did they have you charged with it? A. I drove my car and left the--went in a saloon, and got in another car and drove it off. I stopped at Centralia, Illinois at a beer joint.

'Q. You didn't have a bill of sale on that car? A. I didn't have nothing.

'Q. You pleaded guilty there, too? A. No.

'Q. Did you plead guilty? A. I did.

'Q. What was your lawyer's name? A. Mr. Hans W. Wulff of St. Louis and I believe Mr. George K. Reeves from Caruthersville.

'Q. You plead guilty there is stealing a car? A. Yes, sir.

'Q. But you plead not guilty of larceny of domestic animals, cattle theft? A. Yes, sir.

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'Q. You were out of the Army less than a month when you got in trouble stealing a car? A. I would say around that length of time.

'Q. When did you get out of the Federal Penitentiary? A. I don't remember.

'Q. Was it December 29, 1946? A. I believe it was along about that time, yes, sir.

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'Q. Where did you serve the Federal time? A. Leavenworth.

'Q. On January 6, 1954, were you picked up by the State Highway Patrol at Poplar Bluff? A. What day?

'Q. January 6, 1954.

'Mr. Cooper: That is objected to.

'Q. In January----

'Mr. Cooper: He can ask if he was convicted.

'Mr. Shell: You asked about charges, Mr. Cooper.

'Mr. Cooper: No matter about that. All he can ask [is] if he has been convicted or if he did a certain thing.

'Court: Mr. Cooper, did you ask this witness on direct examination about charges he had been placed in jail on?

'Mr. Cooper: No, sir, I certainly did not. If I did, I was asleep.

'Mr. Shell: I would remind the court about all the charges in Missouri having been dismissed and that have not been dismissed. I submit that opened it up.

'Court: Did you ask him about the charges he had been placed under?

'Mr. Cooper: I asked why he didn't come to Arkansas on charges----

'Court: I am asking you this question, Mr. Cooper, did you ask about charges he had been placed in jail on?

'Mr. Cooper: Yes, sir, in Caruthersville.

'Court: Then this is proper cross examination.

'Mr. Bradley: Just a minute. (Conference at the bench.)

'Mr. Bradley: The court then is overruling Mr. Cooper's objection?

'Court: Sustaining the objection to that question there. The court is permitting the prosecuting attorney to examine on any charges since December 1956 for the reason that the direct examination of the defense counsel made it competent.

'Mr. Bradley: Of course the defendant is objecting to the court's ruling. Exception.

'Mr. Cooper: If the court please, my objection was to the whole business.

'Court: I sustained the objection to 1954, but by your direct examination of defendant on charges since December 1956, the court is holding this is competent for the prosecuting attorney to examine him on arrests and charges since December 1956.

'Mr. Bradley: Same objection.

'Court: All right.

'Mr. Bradley: Same exception.

'Q. In May 1954, in or about Poplar Bluff, did you break into any place and steal something? A. No, sir.

'Q. You didn't? Specifically the date is May 6, 1954.

'Mr. Cooper: I object to that.

'Court: Overruled.

'Mr. Cooper: Exception.

'A. No, sir.

'Q. On or about April 9th, or on or about April 7, 1955, in or around Caruthersville, Missouri, did you steal anything? A. No, sir.

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'Q. What happened to you between January and April? A. I...