Holcomb v. State
| Citation | 218 Ark. 608,238 S.W.2d 505 |
| Decision Date | 02 April 1951 |
| Docket Number | No. 4647,4647 |
| Parties | HOLCOMB v. STATE. |
| Court | Supreme Court of Arkansas |
Hebert & Dobbs, Hot Springs, for appellant.
Ike Murry, Atty. Gen., R. Ben Allen, Sp. Asst. Atty. Gen., for appellee.
The defendant was sentenced to a one-year prison term for stealing a cow. The motion for a new trial listed eight alleged errors, some of which are not argued. This is the second time Holcomb has been tried for the same offense. In an opinion rendered June 5, 1950, we reversed and remanded because an erroneous instruction had been given. Holcomb v. State, 217 Ark. 407, 230 S.W.2d 487. In the cited case it was said that the evidence would support the verdict. In the appeal now before us there was substantial testimony--given by the defendant--that he bought the cow from Mancel Robbins and paid the seller $95 in currency. Robbins flatly contradicted this assertion. The jury had the right to believe either. Its rejection of the defendant's explanation is a matter we are not at liberty to undo if the trial in other respects was free of prejudicial error.
First.--After witnesses had been put under rule counsel for Holcomb called the court's attention to the presence of Robbins and his wife, who jointly owned a herd of 28 cattle from which the missing cow was said to have been stolen. The judge declined to include Robbins and his wife in the list of witnesses placed under the rule, and an exception was saved. No reason was assigned other than the court's general order relating to those who were to testify. It was not asserted that the presence of these two would prejudice the defendant's case.
It is within the court's discretion to enforce the rule as to particular witnesses and the exercise of this right cannot be successfully challenged where it is not shown that injury would attend a refusal to grant the motion. See Mikel v. State, 182 Ark. 924, 33 S.W.2d 397, and other cases to the same effect.
Second.--During a colloquy between state and defense counsel while Holcomb was being cross-examined the court asked Mr. McCoy (assisting the prosecuting attorney) what the purpose of certain questions was. Mr. McCoy replied that they were to show that 'Holcomb came down here after the cow sale was over and was so anxious to get rid of this hot cow that was on his hands'--At this point counsel for the defendant objected and asked that McCoy be reprimanded. There were requests that the statements be disregarded. Mr. McCoy then said, 'I withdraw them, Your Honor', and the court replied: 'The jury is told to disregard the statements of counsel in regard to the cow'. There was no suggestion that the court's action was insufficient, hence the point as a count in the motion for a new trial was not well taken. It is not necessary to comment on what the effect would have been if an exception had been saved, but in any event it should be observed that the court did exactly what the defendant's counsel asked.
Third.--Appellant seems to have staked his appeal primarily on his belief that the court erred in admitting as evidence a certified copy of an old verdict. Holcomb was asked if he had ever been convicted of a crime--'of anything'. He answered, 'nothing [except that I paid a little fine], drinking, or something like that'.
Question: 'Were you, on February 6th, 1925, convicted for false pretense?' Mr. McCoy then began reading: 'Now on this day comes the State of Arkansas, by [its] prosecuting attorney, William G. Bouic'----
McCoy was cut short with an objection. McCoy explained that he was endeavoring to refresh the defendant's memory. Defense counsel then said: 'He has denied it, and until they have introduced the official record his denial stands'. The court sustained the objection and the prosecuting attorney said: 'I offer in evidence a certified copy of the judgment of the Montgomery Circuit Court'. In chambers the proffered evidence was taken under advisement, whereupon the jury was dismissed until the following morning.
When court reconvened Judge Brown announced that he had decided to permit the certified copy to be introduced. Defendant's counsel objected (a) because the copy was not signed by the judge of the Montgomery Circuit Court, and there was nothing to show that a sentence or judgment had been pronounced; (b) the jury's verdict, showing conviction, was insufficient and (c) the instrument was offered while the defendant was still on the stand and prior to the introduction of rebuttal testimony by the state. A fourth objection went to the general proposition that the testimony would prejudice the defendant's rights.
Was the verdict admissible?
The certified copy, styled State of Arkansas (No. 576) v. Oscar Holcomb, followed by the words 'False Pretense', was: 'Now on this day comes the State of Arkansas by its prosecuting attorney, William G. Bouic, and comes the defendant in person and by attorney, Jerry Witt, and both sides announcing ready for trial, a jury of twelve good and lawful men were selected and sworn to try the issues, and after hearing the testimony adduced, instructions of the court, and argument of attorneys, the jury retired to the jury room for the deliberation of the evidence, and returned into the court the following verdict: 'We, the jury, find the defendant guilty and fix his punishment at imprisonment in the penitentiary for a period of one year. O. J. Goobehere, foreman''. This record was duly certified by the circuit clerk.
Appellant's counsel emphasize the provisions of Ark.Stats. § 28-707, where the methods of impeaching a witness are set out, closing with the phrase, '* * * except that it may be shown, by the examination of a witness, or record of a judgment, that he had been convicted of a felony'.
Our cases do not appear to have held to the strict language of the statute. It was taken from Act 52 of 1905, and Act 52 amended Sec. 3138 of Kirby's Digest. Kirby's Sec. 3138 was Sec. 2902 of Mansfield's Digest 1884, and Mansfield's section was in effect when Judge Hemingway wrote the court's unanimous opinion in Hollingsworth v. State, 53 Ark. 387, 14 S.W. 41, 42, in 1890. In discussing the admissibility of impeaching evidence, Judge Hemingway said:
.
The distinction between proving by a record that a witness had been convicted of a crime, without showing judgment, and the necessity for proving by the record that judgment unconditional had been pronounced, came up for consideration before the common law interdiction against testimony of a felon was relaxed. By Act of March 24, 1885, it was provided that on the trial of indictments and other proceedings against persons charged with the commission of crimes, offenses, and misdemeanors, "the person so charged shall, at his own request, but not otherwise, be a competent witness". The statute was mentioned in Ransom v. State, 49 Ark. 176, 4 S.W. 658, 659. It was held that the Code of Civil Procedure making certain classes of offenders incompetent to testify did not extend to criminal procedure. Mansfield's Digest, Sec. 2859. But, said Mr. Justice William W. Smith in the Ransom case, since infamy was a disqualification in criminal cases at common law, it continued unless removed by statute; and when Ransom v. State was decided at the May 1887 term the modification heretofore spoken of permitted the accused to testify. Act No. 222 of 1913, Ark.Stats. § 28-605, removed all disability imposed by the common law, but it expressly states that 'evidence of his former conviction of any crime by a court of this or any other State, Territory or the United States shall be admissible for the purpose of going to his credibility or the weight to be given to his testimony'.
It will thus be seen that we have two statutes, one enacted in 1913 authorizing the introduction of evidence of a conviction, and the other, enacted in 1905, permitting proof of conviction to be shown by the judgment record. The Act of 1913 mentions both civil and criminal actions.
In an appeal decided in 1908, Owen v. State, 86 Ark. 317, 111 S.W. 466, 468, Mr. Justice Hart said 'The universal rule is that it is not the guilt that disqualifies the witness, * * * it is the judgment itself that renders him infamous.' Clarence Sellman was offered as a witness, and counsel for Owen, the defendant, complained on appeal that the trial court should have excluded the evidence because of Sellman's conviction of grand larceny on a plea of guilty. The official entry read: "Wherefore it is the judgment of the court that sentence be withheld herein during the good behavior of the defendant". Although Judge Hart said that the plea without judgment did not go to the competency of the witness, he did draw the distinction between the proceeding resulting in the court's right to pronounce judgment, (the plea) and concluded that only the judgment would render the defendant infamous.
A somewhat similar situation arose when (judgment affirmed in 1912) the contention was made that a defendant was incompetent to testify as a witness for himself. Michigan-Arkansas Lumber Co. v. Bullington, 106 Ark. 25, 152 S.W. 999, 1000. Herbert Bullington sued the lumber company for the loss of an arm. The record of a competent Missouri court was produced, showing that the plaintiff had been tried for robbery and...
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