Payne v. State

• Decision Date: 01 July 1899
• Citation: 52 S.W. 276,66 Ark. 545
• Parties: PAYNE v. STATE
• Court: Arkansas Supreme Court

52 S.W. 276

66 Ark. 545

PAYNE v. STATE

Supreme Court of Arkansas

July 1, 1899

Appeal from Lee Circuit Court, HANCE N. HUTTON, Judge.

Judgment affirmed.

Jas. P Brown, for appellant.

The evidence does not justify the verdict. It was error for the court to refuse to allow the witness, Roach, to be impeached by the written minutes of the proceedings in the examining court. 10 L. R. A. 696. Where the jury is allowed to separate, the burden is on the state to show that they were not improperly influenced. 40 Ark. 454, 471.

Jeff Davis, Attorney General, and Chas. Jacobson, for appellee.

Appellant was not prejudiced by the court's refusal to admit the minutes of Roach's testimony. A juror cannot be used to impeach his own verdict. 13 Ark. 317; 15 Ark. 403; 29 Ark 293; 35 Ark. 109; 59 Ark. 132. Misconduct of a jury, to be ground for a new trial, must occur after the cause is submitted to them, and while they are deliberating. 62 Ark 543; 57 Ark. 1; 44 Ark. 115; 40 Ark. 454.

WOOD, J., BATTLE and HUGHES, JJ., did not participate.

OPINION

WOOD, J.

This is an appeal from a conviction of murder in the second degree. The first, second and third grounds of the motion for new trial are that the verdict was contrary to the law and the evidence. No objection is urged to the charge of the court. There is some conflict in the evidence as to particular circumstances of the fatal reincounter, but we are convinced, from a careful reading of the evidence as set forth in the transcript, that it is legally sufficient to support a verdict for murder in the second degree, and no useful purpose can be accomplished by setting it out and discussing the facts at length.

The fourth ground sets up error in the refusal of the court to permit the reading of the minutes of the evidence taken before the examining court. This was sought for the purpose of contradicting the evidence of a certain witness. The minutes were identified by the examining magistrate as the testimony of witness sought to be impeached, which was reduced to writing and signed by the witness in the presence of the magistrate. The testimony, however, was reduced to writing by a clerk of the magistrate.

The ruling of the court was correct. If it be conceded that the minutes were properly identified, still it was not proper to prove what the testimony of a witness was before an examining court by reading the minutes of such testimony reduced to writing and signed by the witness. The proper method of proving such testimony is to call a witness who heard it, and let him testify as to the facts. The magistrate before whom the testimony was taken, the clerk who took it down, or any other witness who was present and heard it, is competent for the purpose. The witness, called for the purpose of showing the contradiction in the testimony of the witness sought to be impeached, must give his own knowledge or memory of what the testimony of the witness was before the examining court. The minutes may be used only for the purpose of refreshing the memory. The reason for this is obvious under our present statute, which is as follows: "The magistrate in the minutes of the examination shall state the name and place of residence of each witness, and shall make a general statement of the substance of what was proved, and file the same with the proceedings." Sand. & H. Dig. § 1997. This court, in Shackelford v. State, 33 Ark. 539, said concerning this statute: "That the object of making such statement is not that it shall be used as evidence is obvious, and it can make no difference, as to the admissibility of the proof of the evidence before the examining court, that the substance of it was taken down, as in this case, or the statement fuller than required by the statute, for it would not be superior to oral proof." ^[*]

True in Atkins v. State, 16 Ark. 568, at page 588, this court uses this language: "It may be remarked that if Powell made a statement upon the final trial differing from that made by him before the examining magistrate, and his testimony before the examining court was reduced to writing, it should have been produced for the purpose of contradicting him, as it would be the best evidence for that purpose. The prisoner could not introduce secondary evidence, without showing that it was not in his power to produce the statement of the witness as reduced to writing by the magistrate." There is no conflict in these decisions when the statutes under which they were respectively rendered are considered. The statute under which Atkins v. State, supra, was decided provides as follows: "The evidence given by the several witnesses examined shall be reduced to writing by the magistrate, or under his direction, and signed by the witnesses respectively." Gould's Dig. ch. 52, § 40. The difference in the two statutes is obvious, and makes the difference in the decisions. In the latter case the evidence itself of the witnesses is reduced to writing and signed by the witnesses. In the former--our present statute--only a general statement of the substance of what was proved is made by the magistrate. The present statute does not require the evidence of witnesses before an examining court to be reduced to writing and signed by them, as formerly, when Atkins v. State was decided. Iowa has a statute making it the duty of the grand jury to appoint a clerk "who must take and preserve the minutes of the proceedings and of the evidence given before it." Code Io. § 4275. Also a statute (sec. 4241 of the code) which requires the magistrate to write or cause to be written out the substance of the testimony only, almost identical with ours. The supreme court of Iowa, in passing on a case where the question was whether such minutes could be used as impeaching evidence, said: "But the minutes of a witness' testimony before a grand jury, and the substance of his testimony taken before an examining...