Martin v. State

• Decision Date: 08 October 1917
• Docket Number: 148
• Citation: 197 S.W. 861,130 Ark. 442
• Parties: MARTIN v. STATE
• Court: Arkansas Supreme Court

197 S.W. 861

130 Ark. 442

MARTIN v. STATE

No. 148

Supreme Court of Arkansas

October 8, 1917

Appeal from Little River Circuit Court; Jefferson T. Cowling, Judge reversed.

Judgment reversed and cause remanded.

Steel & Lake and James D. Head, for appellants.

1. The court erred in ordering the witness, Campbell, to be held in bond in the presence of the jury. 38 Cyc. 1316, 1320; 40 Id. 2603; 34 Ark. 257; 43 Id. 99; 46 Id. 141; 56 Id. 7; 58 Id. 478; 60 Id. 450.

The conduct of the judge in causing the arrest of the witness was highly prejudicial. 42 S.W. 384; 36 S.W. 477.

John D Arbuckle, Attorney General, and T. W. Campbell, Assistant for appellee.

1. The action of the court was proper and not prejudicial. Acts 1915, § 2, Act 30; 40 Cyc. 2603; 84 Ark. 81; 104 S.W. 693; 8 S.E. 342; 19 Am. & E. Ann. Cases 423; 24 N.Y.S. 200.

OPINION

SMITH, J.

Appellant was convicted for selling intoxicating liquors to one Tobe Taft, and at his trial evidence was offered which was legally sufficient to sustain the verdict. A witness named Campbell testified at the trial that he was present when the incident occurred which counsel for appellant says was the time and place of the occurrence of the alleged sale. According to this witness, no sale took place, but witness, at the request of appellant, gave Taft's wife some whisky, the liquor being poured from a quart bottle in which it was contained into a pint bottle. The effect of this testimony being that, instead of appellant having made a sale, the witness had given away the liquor. When the witness, Tom Campbell, had finished his testimony and was leaving the stand, the court in the presence and hearing of the jury ordered the sheriff to take charge of the witness and hold him to bail in the sum of five hundred dollars to answer the charge of giving away whiskey in Little River County, to which actions and remarks of the court the defendant at the time excepted, and asked that his exceptions be noted of record, which was accordingly done.

This action of the court was assigned as error.

There is no intimation that the witness was guilty of any contumacious or contemptuous conduct, nor is it contended that it was necessary to order the witness into custody in the presence of the jury in order to effect his arrest, or to prevent the possibility of his escape, and under this state of the record we think the action of the court was both erroneous and prejudicial. The necessary effect of the action of the court was to call to the attention of the jury, and in the most impressive manner, the fact that the witness had given testimony which in the opinion of the court made him a violator of the law. It could not have been shown, by way of impeachment upon his cross-examination, that he had been accused of a crime or indicted for its commission; yet the action of the court said to the jury that the witness was a violator of the law and in connection with the felony under investigation for the commission of which the witness was not upon trial. We cannot say what construction the jury may have placed upon this action of the court. It may have lessened--even though it did not wholly destroy--the faith of the jury in the credibility of the witness, and as no reason, in the orderly course of the administration of justice, appears for the peremptory order of the court, we must assume that the order of the court had a tendency to impair the credit of the witness.

In the note to the case of State v. Swink,...