Marshall v. State

• Decision Date: 06 June 1903
• Citation: 75 S.W. 584,71 Ark. 415
• Parties: MARSHALL v. STATE
• Court: Arkansas Supreme Court

75 S.W. 584

71 Ark. 415

MARSHALL v. STATE

Supreme Court of Arkansas

June 6, 1903

Appeal from Sebastian Circuit Court STYLES T. ROWE, Judge.

Reversed.

Appellants E. J. Marshall and Ed Burdett were indicted for grand larceny. Omitting formal allegations, the indictment was as follows:

"The grand jury of Sebastian county for the Fort Smith district thereof, in the name and by the authority of the State of Arkansas, accuse the defendants, E. J. Marshall and Ed Burdett, of the crime of grand larceny, committed as follows to-wit: The said defendants, in the county and district aforesaid, on the 15th day of October, 1902, one pocket-book of the value of $ 1, thirty-five dollars in gold, silver and paper money of the United States, of the value of $ 35, all the property of Jim Dyer, feloniously did steal, take and carry away," etc.

In his opening statement of the case on behalf of the plaintiff, the prosecuting attorney stated to the jury that he would prove that these defendants had the reputation in New York, in St Louis, in New Orleans, in Chicago and in other cities, of being professional pickpockets, and thieves, to which statement defendants immediately objected on the ground that such evidence was only admissible against a witness to contradict him, and not as substantive evidence against a defendant, and that it was improper to make such a statement which objection the court overruled, stating that he would control that, and if it became inadmissible he would so tell the jury, to which defendants excepted; whereupon the prosecuting attorney proceeded, and stated that he would prove that their pictures were in the rogues' gallery at St. Louis, and that defendant Marshall had served a term in a penitentiary, to which statements defendants objected, but the court allowed them to go to the jury, and overruled defendant's objection, stating that he would govern the matter of admissability of the evidence to prove the statements when it arose.

There was proof that between $ 34 and $ 36 were stolen from the persecuting witness, Dyer, but there was no proof as to the character of the money.

John Fuller, a witness, testified that he was chief of police, and he was then asked if he had made investigation among the police records of St. Louis and other cities as to the reputation of defendants, but the evidence was ruled out on defendants' objections; also he was asked if he had seen pictures of defendants, and if he had the pictures, to which he answered that he had the pictures in his office, and the prosecuting attorney asked him to get them. Defendants objected to these questions before the jury and the method of the prosecuting attorney. The court stated he would exclude the evidence. Defendants excepted on the ground that both the court and the prosecuting attorney knew that such evidence was not admissible, and that its effect in connection with his opening statement was irremediable, and that such method should not be permitted. Whereupon the court said that the evidence was not admissable, and would be excluded, and so told the jury.

Defendants excepted to the method and questions of the prosecuting attorney in connection with his opening statement to the jury as trying by indirection to place before the jury that the defendants were professional thieves, that their pictures were in the regues' gallery, and that they had been in jail and penitentiary, because the prejudice from his action could not be cured; but the court stated that he would properly instruct the jury thereon, and at the conclusion of the evidence stated to the jury that they must not, in arriving at their verdict, take into consideration and statement which in any way tended to show the character of defendants. The jury was cautioned by the court not to consider such statements at all in making up their verdict.

At the conclusion of the trial, defendants asked the court to instruct the jury that "the proof of the amount of money taken, $ 34 or $ 36, was not sufficient to sustain a conviction." The court refused to give this instruction, and defendants excepted. Defendants were convicted, and have appealed.

Judgment reversed and cause remanded for new trial.

Mechem & Bryant, for appellants.

Remarks of prosecuting attorney were error. 100 Mich. 193; 70 Ark. 305; 71 S.W. 229; 35 Mich. 371; 33 Barb. 229; 69 Wis. 32; 8 Carr. & P. 222; 7 Ib. 60; 158 N.Y. 512; 106 Mo. 55; 126 Ill. 150. The description and proof of money was insufficient. Sand. & H. Dig. § 1717; 29 Ark. 68; 58 Ark. 19; 37 Ark. 444; 65 Ark. 82; 60 Ark. 141; 62 Ark. 558; 60 Ind. 193; 30 Mo. 29; 76 Ga. 18; 64 Ga. 61.

George W. Murphy, Attorney General, for appellee.

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