Mays v. State

• Decision Date: 17 March 1924
• Docket Number: 241
• Citation: 259 S.W. 398,163 Ark. 232
• Parties: MAYS v. STATE
• Court: Arkansas Supreme Court

259 S.W. 398

163 Ark. 232

MAYS v. STATE

No. 241

Supreme Court of Arkansas

March 17, 1924

Appeal from Sebastian Circuit Court, Fort Smith District; John E Tatum, Judge; reversed.

Judgment reversed, and cause remanded.

Holland & Holland, for appellant.

J S. Utley,Attorney General; John L.Carter, Assistant, for appellee.

OPINION

SMITH, J.

Appellant was convicted of receiving stolen property, and seeks a reversal of the judgment sentencing him to a term in the penitentiary upon the following assignments of error: (1) That the verdict is not supported by sufficient testimony; (2) that the court erred in the admission of testimony; (3) that error was committed in giving and in refusing to give certain instructions.

Upon the first assignment of error it may be said that the testimony on the part of the prosecution was to the following effect: Gladys Settle was en route to visit her aunt, and was accompanied by her father.She and her father went into the courthouse, and left in their car her suitcase, containing, among other articles of wearing apparel, two dresses.Upon returning to the car they discovered that the suitcase had been stolen, and they reported its loss at once to the police.The next day appellant's daughter was seen on the street with one of the dresses on.This young lady was carried to her mother's house, where the officers were told that appellant had bought the dress from a peddler for ten dollars.

Witness Templeton testified, that he saw the suitcase taken from the car, and that the man who took it resembled appellant, but that his hat was pulled down over his face, and he was not certain about his identification.He described the apparel of the man, and, when appellant was brought before him, a day or two later, appellant had on clothes of similar description.Appellant explained his daughter's possession of the dress by saying that he bought it from a peddler, and there was some testimony tending to show that there was a peddler in that neighborhood about the time the suitcase was stolen.We cannot say this testimony is not sufficient to support the conviction.The jury passed upon appellant's explanation of his possession and did not accept it, and we cannot say that this action was arbitrary.

Appellant was asked if he was not addicted to the use of narcotic drugs, and he answered that he was not.Asked when he had discontinued their use, he stated that he had not used such drugs for a period of two weeks preceding his trial.The court permitted the State to prove by a police officer that persons known to the police as drug addicts were frequently seen at appellant's house.This testimony was objected to, but the prosecuting attorney insisted it was competent to show who appellant's associates were, and, in admitting it, the court stated the jury might consider it for whatever it was worth.

We think this testimony was incompetent and its admission prejudicial.It was, of course, proper to ask appellant, on his cross-examination, touching his recent residence, occupation and associations, as affecting his credibility as a witness, but, as these matters were collateral, his answers, whether true or false, was the extent to which that inquiry could be carried, and the court should not have admitted independent testimony on the subject of appellant's associations, as there was no attempt to prove a conspiracy between himself and such persons, or any connection with the crime by such persons.Sweeney v. State,161 Ark. 278, 256 S.W. 73;Davis v. State,150 Ark. 500, 234 S.W. 482;Lockett v. State,136 Ark. 473, 207 S.W. 55;Crawford v. State,132 Ark. 518, 201 S.W. 784;McAlister v. State,99 Ark. 604, 139 S.W. 684.

The court also admitted, over appellant's objection, testimony that at some previous time--and the time was not fixed--the sheriff of Crawford County had recovered from appellant's house a stolen article.The court permitted appellant to testify that the person who had stolen the article was arrested, and that he was a witness at the trial.But we do not think this explanation removed the prejudice of the incompetent testimony.

Cain v. State,149 Ark. 616, 233 S.W. 779, and other cases to the same effect, are cited by the Attorney General in support of the court's ruling in admitting this testimony.These cases are to the effect that, while the general rule is that evidence of the commission of other crimes is admissible only when such evidence tends, directly or indirectly, to establish the defendant's guilt of the crime charged in the indictment, or some essential ingredient thereof, yet evidence of the commission of other crimes of a similar nature about the same time may be admitted if such testimony tends to show the guilt of the accused of the crime charged by disclosing the criminal intent, guilty knowledge, or identifies the defendant, or is a part of a common scheme or plan embracing two or more crimes so related to each other that the proof of one tends to establish the other.

We think, however, the testimony here admitted, over appellant's objection, does not come within any of the exceptions to the general rule under which evidence of another crime may be shown.There was no attempt to show that there was any scheme or plan or...