Brown v. State

• Decision Date: 29 February 1896
• Citation: 34 S.W. 541,62 Ark. 126
• Parties: BROWN v. STATE
• Court: Arkansas Supreme Court

34 S.W. 541

62 Ark. 126

BROWN v. STATE

Supreme Court of Arkansas

February 29, 1896

Appeal from Independence Circuit Court, RCHARD H. POWELL, Judge.

Case reversed.

Yancey & Fulkerson, John K. Gibson, and Jos. M. Stayton for appellant.

1. The utterances of the court were prejudicial to defendant.

2. It was error to admit Bagley's testimony. Whart. Am. Cr Law, p. 997; 30 S.W. 602. Even if appellant had been responsible for Hoxie's bad reputatation, and had been a thief all his life, proof of the commission of other crimes is not admissible, unless they are connected. 34 Ark. 650; 37 id. 261; 43 id. 368; 54 id. 489, 621; Whart. Cr. Ev. sec. 30.

3. The remarks of the prosecuting attorney were highly prejudicial.

E. B Kinsworthy, Attorney General, for appellee.

1. The remarks of the court were not reversible error. 89 Ill. 580.

2. The testimony of Bagley did not prejudice the substantial rights of defendant. The court permitted it, not to show his guilt but to show why the railroad had interested itself in seeing that the robberies at Hoxie were punished. This court will not reverse, except for errors which are substantial and injurious to appellant. 28 Ark. 531; 31 id. 364.

3. The court below, in the midst of all the facts and surroundings did not consider the remarks of counsel reversible error. The subject and range of the argument is necessarily left to the sound discretion of the trial judge, and, unless grossly abused to the prejudice of defendant, it is not the subject of review by this court. 34 Ark. 650; 55 N.W. 756; 22 S.W. 1021. Appellant was not injured by these remarks, hence they constitute no cause for new trial. 32 N.E. 431; 25 S.W. 634. But appellant failed to move to have them excluded from the jury; so the objection is treated as waived. 24 S.W. 420; 20 id. 547; 36 P. 793; 23 S.W. 793.

OPINION

HUGHES, J.

Larry Brown was indicted by the grand jury of the Eastern district of Lawrence county, at the September term, 1895, for the crime of robbery, alleged to have been committed in the forcible taking of the sum of $ 205 from the person and against the will of one C. D. Rominger, in said county and district. Appellant entered his plea of not guilty, and filed his application for a change of venue, which was granted, and the cause was transferred to the Independence circuit court for trial. Thereafter, the cause coming on for trial, a jury was impanelled. In the opening statement to the jury, one of the counsel for the defendant stated, amongst other things, "that the evidence would show that this was a hellish and damnable conspiracy to put the defendant in the penitentiary; that he would show and prove by the evidence that one H. N. Faulkinbury, an emissary of the Iron Mountain Railway, was at the back of the prosecution, and alone responsible for it; that he had manufactured it out of whole cloth; that he had paid the witness Rominger to swear that he had been robbed by the defendant, and that he (Faulkinbury) was present to see that he swore straight; that the railroad company and Faulkinbury were together handling this man; that they had paid him and furnished him passes to come here to swear, and Faulkinbury's job depends on this man's conviction."

There was evidence tending to show that the defendant was guilty of either robbery or larceny, which must be determined from the evidence, and the principles of law applicable thereto, as laid down in the case of Routt v. State, (61 Ark. 594, 34 S.W. 262) decided at the present term of this court, which is similar to case at bar.

The evidence shows that, if an offense was committed by the appellant, it was committed at the town of Hoxie, in the county of Lawrence. On the trial the state introduced I. J. Bagley, a witness in her behalf, who testified as follows: "My name is I. J. Bagley, and I live in Lawrence county, and am familiar with Hoxie." Q. "State what interest the railroad company has in enforcing the law at Hoxie;" to which the defendant objected, which was overruled by the court, and the court stated, in the presence of the jury, that he did not know but that the railroad company would be liable to their passengers for a robbery that had been committed on their passengers while on their trains, and that they would be responsible for a robbery on one of their passengers on railroad property; that counsel for defendant, Mr. Gibson, had stated to the jury, in opening the case, that the railroads were instrumental in bringing this prosecution, and that they had sent their private detective here to see that the witness testified straight, and that the evidence ought to go in to prove that it was not true. The defendant at the time excepted to the ruling of the court, as well as the language of the court in the presence of the jury, and stated to the court that it was not the intention to urge to the jury that the Iron Mountain railroad was doing something that they ought not to do, and that they were attempting to do only what every good citizen would do, and that was to see that the law was enforced, and that they did not blame them for their active interest; but that they desired to show that the detective, Faulkinbury, had been in a position to influence the witness Rominger, and they had furnished him a pass, and the evidence would be introduced only for the purpose of attacking the credibility of the witness Rominger. Then, in response, the witness answered: "Hoxie is the crossing of the St. Louis & Iron Moutain Railway, and for the past five or six years robberies have occurred there until it was unsafe for any one to get out of the depot. It was dangerous, and the railways were trying to stop it." "Do you know what reputation Hoxie bears?" (Objected to by the defendant, and overruled, and exceptions saved.) "Hoxie bears a bad reputation. It has been infested with a gang of gamblers, and they have been the people who are reported to have committed these robberies in the past five or six years. It is a hard place, and there have been a number of robberies committed there." To both answers of these questions propounded to said witness the defendant at the time objected, and the said objections were overruled, and the defendant at the time excepted.

The court gave instructions, in effect, that the state must prove each and every material allegation in the complaint,--either that defendant committed...