Burks v. State

• Citation: 93 S.W. 983,78 Ark. 271
• Parties: BURKS v. STATE
• Decision Date: 31 March 1906
• Court: Supreme Court of Arkansas

93 S.W. 983

78 Ark. 271

BURKS v. STATE

Supreme Court of Arkansas

March 31, 1906

Appeal from Hot Spring Circuit Court; Alexander M. Duffie, Judge reversed.

Judgment reversed.

M. S Cobb, for appellant.

The court erred in permitting the State, in rebuttal, to introduce testimony to prove that the prosecuting witness had made, shortly after the assault, a statement consistent with his testimony on the witness stand, to the effect that he recognized appellant as one of his assailants. 63 Ark. 470; 62 Ark. 494; 66 Ark. 110; 72 Ark. 412; 16 Ark. 628; 56 Ark 345; 42 L. R. A. 432; 49 C. J. L. 440; 51 S.W. 930; 70 S.W. 215; 85 S.W. 1179; 1 Ark. Law Rep. 290; Ib. 406; 30 Am. & Eng. Enc. Law (2 Ed.), 1140; 4 L. R. A. 296; 11 Ib. 75; 48 S.W. 986.

Robert L. Rogers, Attorney General, for appellee.

MCCULLOCH J. RIDDICK, J. not participating.

OPINION

MCCULLOCH, J.

Appellant, Al Burks, was convicted of the crime of assault with intent to kill. The facts of the case are sufficiently stated in the opinion of this court on a former appeal. 72 Ark. 461. The prosecuting witness, W. W. Reiblin, who was the party upon whom the felonious assault is alleged to have been committed, testified that he identified appellant as one of his assailants, and appellant's counsel, after laying the proper foundation by asking Reiblin if he had not on other occasions stated that he did not recognize the persons who assaulted him, to which questions he replied in the negative, introduced witnesses who testified that Reiblin had made such contradictory statements. The court permitted the State in rebuttal, over the objection of appellant, to prove that Reiblin stated to witness, a few hours after the assault, that he recognized appellant as one of the assaulting parties.

The question is therefore presented whether or not, where a witness has denied having made a statement contradictory of those made upon the witness stand, and proof is introduced tending to establish such contradictory statements, former statements of the witness consistent with those made by him upon the stand are admissible in support of his testimony. Authorities are not wanting sustaining the rule as to admissibility of such testimony. Prof. Wigmore, after reviewing the decisions on the subject, casts the weight of his opinion in favor of its admissibility. 2 Wigmore on Ev., § 1126. There are some courts which hold to the rule that the evidence is admissible for the purpose of corroborating or re-establishing the testimony of the witness on the main question, on the ground that the jury should be permitted to hear the previous consistent, as well as contradictory, statements and decide which are true, but that rule finds scant support in the adjudged cases, and is generally discredited. The courts which have adopted the rule of admissibility of the testimony put it on the ground stated by Prof. Wigmore, that it is for the purpose of supporting the witness in his denial of the contradictions. This view is stated by Judge COOLEY in delivering the opinion in Stewart v. People, 23 Mich. 63. "The rule is," says Reade, J., in State v. Parish, 79 N.C. 610, "that when the witness is impeached--observe, when the witness is impeached--it is competent to support the witness by proving consistent statements at other times, just as a witness is supported by proving his character; but must not be considered as substantive evidence of the truth of facts, any more than any other hearsay evidence."

This view, while not without reason and authority to support it is, we think, clearly against the weight of authority. The courts of the following States adhere to that rule: Indiana North Carolina, Pennsylvania, South Carolina, Tennessee and Texas. Perkins v. State, 4 Ind. 222; Hinshaw v. State, 147 Ind. 334, 47 N.E. 157; State v. Parish, supra; McKee v. Jones, 6 Pa. 425; Tyler v. Tyler, 1 Hill Ch. 77; Graham v. McReynolds, 90 Tenn. 673, 18 S.W. 272; Red v. State, 40 S.W. 408.

The courts of the following States are found arrayed against the admissibility of such evidence: Alabama, California, Georgia, Iowa, Louisiana, Massachusetts, Mississippi, Missouri, Montana, New Hampshire, New York and Vermont. Jones v. State, 107 Ala. 93, 18 So. 237; People v. Doyell, 48 Cal. 85; Mason v. Vestal, 88 Cal. 396, 26 P. 213; McCord v. State, 83 Ga. 521, 10 S.E. 437; State v. Vincent, 24 Iowa 570; State v. Cady, 46 La.Ann. 1346, 16 So. 195; Commonwealth v. Jenkins, 10 Gray 485; Hewitt v. Corey, 150 Mass. 445, 23 N.E. 223; Head v. State, 44 Miss. 731; State v. Taylor, 134 Mo. 109, 35 S.W. 92; Kipp v. Silverman, 25 Mont. 296, 64 P. 884; Reed v. Spaulding, 42 N.H. 114; Dudley v. Bolles, 24 Wend. 465; Lavigne v. Lee, 71 Vt. 167, 42 A. 1093.

The courts of Missouri, New Hampshire and New York first admitted such testimony, but in later decisions excluded it. So the earlier English decisions held it admissible, but later repudiated the doctrine.

Greenleaf lays down the rule in accord with the majority of the courts as before cited, but states an exception, which is found in many decisions, "where a design to misrepresent is charged upon the witness in consequence of his relation to the party, or to the cause; in which case, it seems, it may be proper to show that he made a similar statement before that relation existed." Wharton, Cr. Ev., § 492; Greenleaf, Ev. (15 Ed.), § 469; 2 Phillips, Ev. 445, 446; Nichols v. Stewart, 20 Ala. 358; People v. Doyell, supra; State v. Vincent, supra; State v. Cady, supra; State v. Reed, 62 Me. 129; Red v. State, supra; State v. Flint, 60 Vt. 304, 14 A. 178; Ellicott v. Pearl, 10 Peters 412; Conrad v. Griffey, 52 U.S. 480, 11 HOW 480, 13 L.Ed. 779.

The facts of the case at bar do not, however, fall within any of the exceptions noted in the cases cited. It is true that appellant introduced testimony tending to establish contradictory statements of the prosecuting witness, Reiblin and that the latter entertained feelings of animosity toward him which prompted a design to misrepresent the facts and connect him with the assault as the assailant, but there was no testimony tending to show that the relations between the parties...