Moon v. State

• Decision Date: 26 November 1923
• Docket Number: 9
• Citation: 255 S.W. 871,161 Ark. 234
• Parties: MOON v. STATE
• Court: Arkansas Supreme Court

255 S.W. 871

161 Ark. 234

MOON v. STATE

No. 9

Supreme Court of Arkansas

November 26, 1923

Appeal from White Circuit Court; E. D. Robertson, Judge; reversed.

Judgment reversed and cause remanded.

Brundidge & Neelly, for appellant.

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

OPINION

HART J.

Hinton Moon prosecutes this appeal to reverse a judgment and sentence of conviction against him for the crime of seduction.

This is the second appeal in the case, and reference is made to the opinion on the former appeal for a statement of the evidence, which is not materially different from that on the present appeal. Moon v. State, 155 Ark. 601, 245 S.W. 29.

The first assignment of error is that the verdict of the jury should be set aside because three members of it had read an article on the case, published in a daily paper in the town where the case was tried, during the deliberation of the jury. The testimony of the jurors is mainly relied upon in support of this assignment of error. Grounds for a new trial cannot be established by the affidavits of the trial jurors for any other cause than that the verdict was made by lot, Capps v. State, 109 Ark. 193, 159 S.W. 193.

But it is insisted that this ground for a new trial is established by other evidence than that of the jurors themselves. The only other evidence on the point is that of the publisher of the daily newspaper, who testified that three of the jurors were subscribers to the paper. This testimony falls short of showing that the article in question commenting on the case was read by the jurors. Hence we hold that this assignment of error is not well taken.

The next assignment of error is that the court erred in allowing the State to introduce in evidence a motion for a continuance, subscribed and sworn to by the defendant, for the purpose of contradicting his testimony. We think that this assignment is well taken.

The court admitted the motion for a continuance in evidence for the purpose of impeaching the defendant as a witness. Section 4187 of Crawford & Moses' Digest relates to the mode of impeachment of witnesses. Among other things it provides that a witness may be impeached by the party against whom he is produced, by showing that he has made statements different from his present testimony.

In the application of this statute to civil cases it has been held that a witness may be impeached by introducing his pleading under oath in another case which is in conflict with his testimony. Texas & St. Louis Ry. Co. v. Donnelly, 46 Ark. 87.

Again, in St. Louis, Iron Mountain & Southern Railway Company v. Faisst, 68 Ark. 587, 61 S.W. 374, it was held that an affidavit, which the witness admits having signed, though written down by another, is admissible in the impeachment of his testimony, if contradictory thereof.

In applying the mode of impeachment provided by the statute to criminal cases, in Weaver v. State, 83 Ark. 119, it was held that, where an accused takes the stand in his own behalf, he does so subject to the rule allowing the testimony of a witness to be impeached by proof of contradictory statements, as, for example, in an affidavit for continuance.

In the later case of Baker v. State, 85 Ark. 300 107 S.W. 983, it was held that, where the defendant filed an application for continuance on amount of the absence of a certain witness, in which he alleged what the witness would swear if present, which application was refused, and the witness subsequently appeared and testified somewhat differently from defendant's statement in the application, it was error to permit the application to be read for the purpose of impeaching the defendant, if such...