McArthur v. State

• Decision Date: 23 July 1894
• Citation: 27 S.W. 628
• Parties: McARTHUR v. STATE.
• Court: Arkansas Supreme Court

Page 628

27 S.W. 628

McARTHUR v. STATE.

Supreme Court of Arkansas.

July 23, 1894.

Appeal from circuit court, Pulaski county; Robert J. Sea, Judge.

J. S. McArthur was convicted of slander, and appeals. Reversed.

P. H. Prince and F. T. Vaughan, for appellant. James P. Clarke, Atty. Gen., and Charles T. Coleman, for the State.

RIDDICK, J.

The appellant was indicted for slander by the grand jury of Perry county. After a change of venue to Pulaski county, he was tried and convicted, and sentenced to three years in the state penitentiary. His appeal raises certain questions of law which we shall state and determine. The indictment, in substance, charges that appellant slandered one Pearl Jones by falsely uttering and publishing about her words which, in their common acceptation, amounted to charge the said Pearl Jones with having committed fornication and adultery with the sons of appellant.

On the trial of the case, Pearl Jones was introduced as a witness for the state, and testified that she had never had sexual intercourse with either of defendant's sons, or any one else. On cross-examination, she was asked if she had not had sexual intercourse with Joe Darr, and concerning other circumstances having no connection with the charge in the indictment. To contradict the prosecutrix, and to show that she was a woman of lax morals, the appellant was allowed to introduce proof tending to show that she had committed fornication with Joe Darr, and had been guilty of other criminating acts. The court, in effect, held that testimony concerning these extrinsic facts could only be introduced for the purpose of contradicting and impeaching the witness Pearl Jones, and that the jury could only consider them for the purpose of testing the accuracy of her statements, and to determine the weight that should be given her testimony; that such acts, if proven, did not go in justification of the offense. If there was any error in this ruling of the court, it was in favor of the defendant. Pearl Jones was the prosecuting witness, but she could not be impeached by proof tending to show that she had been guilty of acts of fornication or adultery with men other than the sons of defendant. Much less could such collateral acts of adultery or fornication be considered as a justification of the crime with which defendant was charged. Section 2902, Mansf. Dig., expressly provides that a witness shall not be impeached "by evidence of particular wrongful acts, except that it may be shown, by the examination of a witness or record of a judgment, that he has been convicted of a felony." This portion of our statute providing that a witness should not be impeached by evidence of particular acts was only declaratory of the law as it existed at the time. In the case of Pleasant v. State, 15 Ark. 624, which was a prosecution for an assault with intent to commit rape, this court, before the passage of the statute quoted above, held that the chastity of the prosecuting witness could not be impeached by evidence of particular acts of unchastity with men other than the defendant, but that it might be impeached by evidence of her general reputation in that respect. The court approved the language of Mr. Greenleaf in the third volume of his work on Evidence (section 214), when, speaking of prosecutions for rape, he says: "The character of the prosecutrix for chastity may also be impeached; but this must be done by general evidence of her reputation in that respect, and not by evidence of particular instances of unchastity. Nor can she be interrogated as to a criminal connection with any other person, except as to her previous intercourse with the prisoner himself; nor is such evidence of other instances admissible." When a person is charged with slandering a female, not by saying of her, generally, that she is a lewd woman, but by stating that she has committed certain specific acts of adultery or fornication, the same rule will apply. In the case of Patterson v. State, 12 Tex. App. 476, the court held that the defendant in a criminal action for slander could not "be permitted to prove any other acts or conduct imputing a want of chastity, except those specifically embraced in the imputation made by him." The learned judge of the circuit court properly allowed such collateral acts of fornication to be proved in this case, for the reason that the prosecuting attorney, in his examination in chief, asked Pearl Jones if she ever had "sexual intercourse with any man." The general rule is that, when a witness is cross-examined on a matter collateral to the issue, his answer cannot be subsequently contradicted by the party putting the question; but this limitation only applies to answers on the cross-examination. It does not affect answers to the examination in chief. Whart. Cr. Ev. (8th Ed.) § 484; State v. Sargent, 32 Me. 429. When a party, in his examination in chief, is allowed to inquire about collateral acts, the opposing side will usually be allowed to contradict the witness by evidence showing to the contrary. The prosecuting attorney, after having asked Pearl Jones whether she had had sexual intercourse with either of the sons of defendant, elected to proceed further, and to ask her if she ever had sexual intercourse with any man. It was, therefore, proper to allow defendant to contradict her by evidence tending to show that she had been guilty of such acts of illicit intercourse, though such evidence could not go in justification of the crime, but at most only to contradict and impeach the witness.

The court refused, on motion of the attorney for the defendant, to compel Pearl Jones, the prosecutrix, to submit to an examination of her person. We think that this ruling of the court was correct. The chaste and virtuous woman would naturally shrink from such an examination, as well as those who were guilty and feared detection, and we hold that the refusal of the prosecutrix to submit to the...