Holder v. State

• Decision Date: 17 February 1894
• Citation: 25 S.W. 279,58 Ark. 473
• Parties: HOLDER v. STATE
• Court: Arkansas Supreme Court

25 S.W. 279

58 Ark. 473

HOLDER v. STATE

Supreme Court of Arkansas

February 17, 1894

Appeal from Clark Circuit Court, RUFUS D. HEARN, Judge.

Judgment reversed and cause remanded.

John E Bradley and Dan W. Jones & McCain for appellant.

1. The evidence does not support the verdict. If two theories are equal in soundness, then the doubt and presumption of innocence must prevail. Guilt must be established by sufficient evidence. Wills, Circ. Ev. 194. Appellant's declarations in evidence satisfactorily explain all his conduct. 85 Cal. 39; 38 Mich. 125. There was a reasonable doubt of defendant's guilt. 38 Mich. 482. Strong probabilities of guilt are not sufficient, Ib. The utmost strictness of construction prevails in favor of life and liberty. 41 Wis. 299; Com. v. Webster, 5 Cush. 320; 89 Mo. 282. Malice and motive for the crime are utterly lacking. 49 N.Y. 137. If the facts be consistent with innocence, they are no proof of guilt. 53 N.Y. 475; 28 Hun 593; 54 Barb. 309; 127 Mass. 424; 34 Am. Rep. 491; 32 Ark 238.

2. The evidence of Bromlett, Foster and Duff was irrelevant.

3. It was error to allow the State's attorney to ask improper questions on cross-examination of defendant. 78 Ala. 474; 79 id. 21; 87 id. 103; 87 Ill. 210; 96 Ill. 492; 79 Mich. 110; 50 N.Y. 240; 72 N.Y. 571; 76 N.Y. 288; 66 Me. 116; 67 Miss. 333; 68 Cal. 101; 76 Mo. 350; 14 Ore. 300; 88 Mo. 88; 81 Id. 231; 12 Ore. 99; 75 Mo. 171; Whart. on Hom. secs. 736, 737, 738. The comments of the State's attorney were prejudicial. 76 N.Y. 288 and cases supra. It was not enough to mildly admonish the State's attorney, but the court should have charged the jury specifically upon the improper remarks. 78 Ga. 596; 54 Vt. 83; 88 Mich. 456; 51 id. 227; 62 id. 643; Ib. 356; 57 id. 506; 49 Ind. 33; 59 Mich. 552; 44 Mo. 238; 24 Kas. 252; 65 N.C. 563; 65 N.C. 505; Ib. 369; 79 Cal. 415; 56 Ind. 186; 62 Iowa 108; 19 Or. 397; 4 Am. & E. Enc. Law, p. 876 and notes; 17 S.W. 402; 18 ib. 1003; Ib. 583.

4. It was error to modify instruction No. 5 asked for defendant. As modified it was erroneous.

James P. Clarke, Attorney General, and Chas. T. Coleman, for appellee.

The questions asked by the State's attorney were not improper. The answers thereto affected the witness' credibility. The defendant takes the stand on the same footing as any other witness. 56 Ark. 7; 46 id. 141; 95 Ill. 407; 105 ib. 414; 37 Oh. St. 178; 42 N.Y. 265; 97 Mass. 588; Whart. Cr. Ev. sec. 474; 1 Bish. Cr. Pro. sec. 1185; 53 Ark. 387; 26 P. 749; 19 Mich. 170; 100 Mo. 606. A witness, on cross-examination, in order to discredit him, may be asked if he had not committed perjury in another State. 1 Jones, (N. C.) 526. Or convicted of felony. Busbee, (N. C.) 358; 42 N.Y. 270. Or if he had been in the penitentiary. 100 Mo. 606; 24 S.W. 100. See also 20 Oh. St. 460; 97 Mass. 588; 36 Kas. 92; 16 Mich. 43.

OPINION

BATTLE, J.

Appellant was indicted for and convicted of murder in the first degree, alleged to have been committed by killing his wife, Mary Holder, by means of poison, on the 24th of February, 1893; and was sentenced to be hung on the 16th of November following.

He brings the record of his trial and conviction to this court, and asks that the judgment which was rendered against him be reversed.

One of the grounds upon which he asks for a reversal is the admission of the testimony of Gilbert Bromlett and Henry Foster, which tended to prove that an improper intimacy existed between himself and a woman named Frances Carter, alias Dans Ball. The testimony was properly admitted, as it tended to show that he had ceased, at the time of his wife's death, to be a loyal and devoted husband, and that he was induced to kill his wife in order to prevent any disturbance of the illicit relations existing between him and his paramour. The testimony of Agnes Duff, to which the appellant objected, was also admissible because it tended to strengthen that of Gilbert Bromlett and Henry Foster. She testified that she had often seen appellant, in the year previous to the 6th of September, 1893, the day of the trial of this cause, visiting the house occupied by Daus Ball and her mother.

Appellant insists that the trial court erred in allowing the State to propound to him improper questions while he was testifying. The appellant, among other things, testified in his own behalf that he "ran away from home in the summer of 1891, and went back to Mississippi, where he stayed several months; that Mississippi was his old home, and he was there among his 'kin people'; and that he moved from Mississippi to Texas in 1884, stayed in Texas four years, and then moved to this State.' On cross-examination, the State, over the objections of appellant, asked him these questions, and he answered them as follows:

"1. Question. How came you to leave Texas?

"Answer. I left there because I thought I could make more money in Arkansas.

"2, Q. Did you not run away from there when you came to this State?

"A. No, I did not.

"3. Q. Is it not a fact that you left there because there was a mob after you?

"A. No, there was no mob after me.

"4. Q. Is it not a fact that you were in the penitentiary in Texas?

"A. It is not a fact.

"5. Q. Is it not a fact that you had committed rape in Texas, and left there for that reason?

"A. It is not a fact.

(The court instructed the jury not to consider the last named question and answer as evidence in the case.)

"6. Q. Why did you leave Mississippi.

"A. Because I became involved in a security debt which took all I had to pay out, and I wanted to go somewhere else, where I could take a new start.

"7. Q. Did you leave there because you were in debt?

"A. No, I left there because it took all I had to pay my security debts.

"8. Q. What had you done when you left this State in 1891?

"A. I left because I had got into trouble with another colored man. He came onto me with a piece of scantling, and crowded me so close that I had to cut him, and I left because I was advised by the friends of the other man to do so. I went to Mississippi, and stayed there several months; then came back, stood my trial, and was acquitted."

When a defendant in a criminal case becomes a wit-ness in his own behalf, he is subject to cross-examination and impeachment like any other witness. McCoy v. State, 46 Ark. 141; Lee v. State, 56 Ark. 4, 19 S.W. 16.

In Wilbur v. Flood, 16 Mich. 40, Mr. Justice Campbell, in delivering the opinion of the court, said: "It has always been held that within reasonable limits a witness may, on cross-examination, be very thoroughly sifted upon his character and antecedents. The court has a discretion as to how far propriety will allow this to be done in a given case, and will or should prevent any needless or wanton abuse of the power. But within this discretion we think a witness may be asked concerning all antecedents which are really significant, and which will explain his-credibility, and it is certain that proof of punishment in a State prison may be an important fact for this purpose."

In Hollingsworth v. State, 53 Ark. 387, 14 S.W. 41, Mr. Justice Hemingway, speaking for the court, said: "It is always competent to interrogate a witness on cross-examination touching his present or recent residence, occupation and associations; and if, in answer to such questions, the witness discloses that he has no residence or lawful occupation, but drifts about in idleness from place to place, associating with the low and vicious, these circumstances are proper for the jury to consider in determining his credibility. That such a life tends to discredit the testimony of the witness, no one can deny; when disclosed on cross-examination, it is exclusively for the jury to determine whether any truth can come from such source, and, if so, how much."

As a general rule, a witness is not compellable to answer a question when the answer to it will tend to expose him to a penal liability, or to any kind of punishment, or to a criminal charge. When such questions are asked it is the duty of the court to inform the witness of his right to decline to answer, but it should not prevent him from answering if he chooses. 1 Greenleaf on Evidence, sec. 451; Pleasant v. State, 13 Ark. 360; S. C. 15 Ark. 624. But this rule does not apply to defendants in criminal cases, as to accusations against them, when testifying in their own behalf. In such cases they are required to testify as to the charge in the same manner as other witnesses.

The statutes of this State permit the impeachment of a witness by showing by his own examination that he has been convicted of a felony. Mansfield's Digest, sec. 2902.

The first, second, third and fifth questions seemed to have been asked with the view of showing that the appellant had left Texas because he had committed rape, and because he was afraid to remain. They were not admissible for that purpose. He could not be compelled to criminate himself in such a manner. His removal from Texas to Arkansas occurred about five years before he testified, and was too remote in time to form the subject of a cross-examination. 1 Greenleaf on Evidence, section 459. The fact that a mob was in pursuit of him at the time he left could not legally affect his credibility unless it could be shown that some criminal act of his own had caused the mob, and that could not be shown by his own testimony without criminating himself. It was proper to ask him if he had been confined in the penitentiary of Texas, as that tended to show that he had been convicted of an infamous crime, had been disgraced, and had not the inducement to tell the truth that he would have if he had not been made infamous. The sixth and seventh questions, asked for the purpose of showing that he left the State of...