McCarley v. State

• Decision Date: 14 October 1974
• Docket Number: No. CR,CR
• Citation: 257 Ark. 119,514 S.W.2d 391
• Parties: Gordon Eutah McCARLEY, Appellant, v. STATE of Arkansas. 74--80.
• Court: Arkansas Supreme Court

Page 391

514 S.W.2d 391

257 Ark. 119

Gordon Eutah McCARLEY, Appellant, v. STATE of Arkansas.

No. CR 74--80.

Supreme Court of Arkansas.

Oct. 14, 1974.

Tackett, Moore, Dowd & Harrelson, Texarkana, for appellant.

Jim Guy Tucker, Atty. Gen. by O. H. Hargraves, Deputy Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant Eutah McCarley asserts a single point for the reversal of his conviction of second degree murder by jury verdict fixing his punishment at 21 years imprisonment. He contends that the circuit judge erred in overruling his objections to evidence of specific wrongful acts allegedly done by appellant prior to the incident for which he was tried.

McCarley was charged with first degree murder in the killing of one Lonnie Richardson on October 17, 1973 at or near McCarley's old homeplace near Grannis. At the time, McCarley was moving back into the house there after an absence of some two or three years.

Appellant took the witness stand and on cross-examination the prosecuting attorney asked him if he had a fight with a fellow workman named W. D. Smith, if he had a pretty violent fight in a uranium mine in New Mexico, if he had engaged in bootlegging whiskey in Oklahoma, if he had not operated a still in Oklahoma, if he did not bring whiskey with him to Arkansas on the day of the shooting, and if he had an altercation in which he used a knife and his adversary used a tire tool. All of these questions were answered by McCarley in the negative except that, in response to the question about W. D. Smith, he said that he had to defend his rights with Smith.

Appellant contends that this interrogation was prohibited by Ark.Stat.Ann. § 28--707 (Repl.1962). A short answer to this argument is that this statute has no application and does not limit cross-examination of a witness in this respect. Carter v. State, 255 Ark. 225, 500 S.W.2d 368. This line of questioning going to the credibility of the witness was permissible. Inklebarger v. State, 252 Ark. 953, 481 S.W.2d 750; Bowlin v. State, 175 Ark. 1047, 1 S.W.2d 546; McAlister v. State, 99 Ark. 604, 139 S.W. 684. Furthermore, in view of appellant's answers, he is in no position to claim that he was prejudiced by the questions, particularly since the jury was admonished that the questions affected credibility only. Wallin v. State, 210 Ark. 616, 197 S.W.2d 26; Dailey v. State, 250 Ark. 965, 468 S.W.2d 238; Garrison v. State, 148 Ark. 370, 230 S.W. 4; Barton v. State, 175 Ark. 120, 298 S.W. 867; Bowlin v. State, supra.

The state's attorney, however, was not satisfied with appellant's answers and, on rebuttal, called Harold Higgins and Nell Dean McCarley, appellant's former wife from whom he had been separated and divorced but who was living with him at the time of the alleged crime. Higgins testified, over appellant's objection, that he had within recent months, bought whiskey from McCarley. Mrs. McCarley testified, also over appellant's objection, that appellant had been engaged in selling whiskey and had been in a rather violent altercation in which a rifle was involved while they were living in the west. This was clearly error. It did constitute an effort to impeach McCarley in violation of Ark.Stat.Ann. § 28--707. The questions asked were collateral to the issue and the state had no right to contradict appellant by evidence of any prior bad acts, as distinguished from evidence of a former conviction. McAlister v. State, supra. This prohibition applies with at least as great impact when the defendant is the witness as when any other witness is involved. Randall v. State, 239 Ark. 312, 389 S.W.2d 229. The trial court's limitation of consideration of this rebuttal evidence to the credibility of the witness could not cure the error, because its admission was contrary to the statute. See Ederington v. State, 244 Ark. 1096, 428 S.W.2d 271.

The Attorney General, however, very appropriately foregoes any argument that there was no error in the admission of this testimony. The state's argument is that the error was not prejudicial. That argument is supported by such decisions as Ware v. State, 91 Ark. 555, 121 S.W. 927. It presents the real issue on appeal. In Ware, we said that the erroneous introduction of testimony is not prejudicial if it does not deprive the defendant of a fair and impartial trial under all the evidence in the case, i.e., where the uncontroverted testimony shows that the defendant is guilty of the degree of crime of which he is convicted, error in the introduction of incompetent testimony is not prejudicial because, regardless of the light in which it is viewed, the jury could not have rendered a verdict of acquittal. We recognized, however, that if the facts are disputed or the proof controverted, that view of the testimony most favorable to the defendant should be taken and, if, in such view, the incompetent testimony would have a tendency to disparage the controverting evidence on the part of the defendant, its admission would be prejudicial. When we applied the rule in Ware, we found the error to have been prejudicial.

The rule recited in Ware has been applied without question when the verdict of the jury finding a defendant guilty of a degree of crime clearly demonstrates that the inadmissible testimony could not have been considered in arriving at the verdict Coulter v. State, 100 Ark. 561, 140 S.W. 719. But we cannot say that this is so in the present case. Of course, we presume error to be prejudicial in the absence of an affirmative showing to the contrary unless it manifestly is not. Graves v. State, (1974), 256 Ark. ---, 505 S.W.2d 748. The question of prejudice here is not without difficulty. It turns upon the question whether appellant's credibility is so essential to his defense that any testimony tending to make him appear less credible is disparaging to the theory of his defense and the evidence tending to support it. If so, the error is prejudicial. Carlley v. State, 191 Ark. 363, 86 S.W.2d 36. We must look then to the theory of his defense and its evidentiary support to answer the question.

Appellant was charged with first degree murder and it is sufficient for the purposes of this appeal to say that the evidence would have...