Goynes v. State

• Court: Arkansas Supreme Court
• Writing for the Court: MEHAFFY, J.
• Citation: Goynes v. State, 42 S.W.2d 406, 184 Ark. 303 (Ark. 1931)
• Decision Date: 05 October 1931
• Docket Number: 131
• Parties: GOYNES v. STATE

42 S.W.2d 406

184 Ark. 303

GOYNES v. STATE

No. 131

Supreme Court of Arkansas

October 5, 1931

Appeal from Hempstead Circuit Court; Dexter Bush, Judge; affirmed.

Judgment affirmed.

Atkins & Stewart, for appellant.

Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.

OPINION

MEHAFFY, J.

The appellant was indicted for murder in the first degree and was convicted of manslaughter, and his punishment fixed at five years in the penitentiary.

It was alleged that he shot and killed one Jesse Campbell. The only assignments of error are as follows: (1) The prejudicial testimony of witness Homer Burke. (2) The error in admitting over appellant's objection the purported dying declaration of the deceased, Jesse Campbell.

It would serve no useful purpose to set out the testimony, as there is no contention that the evidence is not sufficient to support the verdict.

The testimony of Homer Burke which the appellant claims was erroneously admitted is as follows: "So he told us says, 'Now I want you to lock Vernie Goynes up; he told me he was going home and get his gun and come back and kill me'."

Appellant contends that, the above testimony having been admitted over his objections, the error was not cured by the court excluding this testimony and directing the jury that they could not consider it. Appellant admits that the general rule is that, when the court admits incompetent testimony, and afterwards excludes it from the consideration of the jury this cures the error.

In the trial of a case in the circuit court, it sometimes happens that incompetent evidence is admitted, and when it appears to the court that any evidence admitted is incompetent, it is the duty of the court to exclude it from the consideration of the jury, and to instruct the jury not to consider it.

Trial courts must necessarily have large discretion in the admission and rejection of evidence. Of course, this discretion must be exercised carefully so as to result in no prejudice to the defendant. If, however, the court has admitted testimony that he afterwards concludes is incompetent, certainly he should not be required to continue in this error; but it is his duty to correct the error. The trial judge can only do this in the manner done in the instant case, or, at the request of the defendant, the case might be withdrawn from the jury and tried before another jury.

The Texas court said: "We think the true rule on this subject to be: If the testimony is not of a very material character, it may be withdrawn by the court, and the error thus cured; but if, on the contrary, the evidence is of a material character, and was calculated to influence or affect the jury, the withdrawal of the same from their consideration would not heal the vice of its admission." Barth v. State, 39 Tex.Crim. 381, 46 S.W. 228, 73 Am. St. Rep. 935.

The evidence objected to in this case is the testimony of Burke, to whom Campbell went after the first difficulty and made the statement testified to by Burke. This same statement was in Campbell's dying declaration which was introduced in evidence, and no objection was made to the dying declaration of Campbell on this ground. Moreover, the appellant himself, when the evidence was introduced over his objection, asked the court to exclude it.

The dying declaration having already been introduced, containing the same evidence given by Burke, and no objection having been made to its introduction on this ground, the evidence of Burke was cumulative.

"The admission of objectionable evidence is not cause for reversal where the same or substantially the same evidence has been previously received without or over objection, and it does not appear that the evidence, when admitted the second time, exerts more influence than when admitted the first time, or that other prejudice has resulted." 38 Cyc. 1418.

"The general rule is that, if evidence erroneously admitted during the progress of a trial is distinctly withdrawn by the court the error is cured, except in extreme instances where it is manifest that the prejudicial effect of the evidence on the jury remains despite its exclusion and influences...