Burgess v. State
| Decision Date | 30 June 1913 |
| Citation | 158 S.W. 774,108 Ark. 508 |
| Parties | BURGESS v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Union Circuit Court; George W. Hays, Judge; affirmed.
Judgment affirmed.
Charles Jacobson and Mahony & Mahony, for appellant.
1. It is an essential requisite to impeaching a person that the witness knows his general reputation among his neighbors for truth and veracity, and from that knowledge would not believe him on oath. Evidence of particular acts * * * is not admissible. 67 Ark. 112.
2. The testimony admitted was incompetent and prejudicial. Taken in connection with instruction 4, given over defendant's objection, the error calls for a reversal. 56 Ark. 226; 68 Id. 336; 72 Id. 438.
3. The letter from Kolb as corroborative of Hammond's testimony was improperly refused. 77 Ark. 545.
Wm. L Moose, Attorney General, Jno. P. Streepey, Assistant, for appellee.
1. It was appellant's duty to call the attention of the court to any seeming error in the court's charge. A general objection is not sufficient. 107 Ark. 361. No mention is made of the objectionable instructions in the motion for new trial. 94 Ark. 390-2; 94 Id. 378-9.
2. The letter of Kolb was inadmissible. 97 Ark. 567.
Appellant was convicted in the Union Circuit Court under an indictment charging the larceny of a promissory note of the value of $ 140, and the property of one Mrs. M. F. Norman. His punishment was assessed at one year in the penitentiary and he prosecutes this appeal from that judgment. Appellant had contracted to buy a forty-acre tract of land from Mrs. Norman, for the consideration of $ 250, and after having made some payments, owed a balance, evidenced by the note alleged to have been stolen. Appellant had been given a bond for title to the land, and demanded a deed upon presentation of the note, under the claim that he had paid the note. The appeal questions chiefly the sufficiency of the evidence, and, while it is not altogether satisfying, it is legally sufficient to sustain the verdict. In fact, the veracity of the witnesses is the principal question in the case, but that question is concluded by the verdict of the jury, and it will serve no useful purpose to review this evidence.
The court gave an instruction on the impeachment of witnesses which is challenged, and is said to be error calling for the reversal of the case. It reads as follows: "You will disregard the testimony of any witness, which you may believe to be false, and if you believe that any witness has testified wilfully falsely to any material fact, you may disregard the whole of the testimony of such witness, if you believe it totally unworthy of credence." Appellant insists that this instruction tells the jury that if any part of the statement of a witness is wilfully false, they may disregard it all, even though they believe portions of it to be true. The instruction does not say so, and, if it is susceptible of that construction, the fact should have been called to the attention of the court. Evidently, what the court intended to tell the jury was that, if they believed a witness had testified wilfully falsely, they could disregard such portions as they believed to be false, or they would be warranted in rejecting it all,...
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Johnson v. State
... ... instruction. The court's attention was not called to any ... particular defects in it. As was said in the last of the ... above cases, "The language used was probably the result ... of inadvertence or oversight and did no harm." ... In the ... recent case of Burgess v. State, 108 Ark ... 508, 158 S.W. 774, appellant's counsel contended that ... that case should be reversed because an instruction was given ... in that case, which, in effect, told the jury, "that if ... any part of the statement of the witness is wilfully false ... they may disregard it ... ...
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Johnson v. State
...cases: "The language used was probably the result of inadvertence or oversight which did no harm." In the recent case of Burgess v. State, 108 Ark. 508, 158 S. W. 774, appellant's counsel contended that that case should be reversed because an instruction was given in that case which, in eff......
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