Redd v. State

• Decision Date: 09 July 1898
• Citation: 47 S.W. 119,65 Ark. 475
• Parties: REDD v. STATE
• Court: Arkansas Supreme Court

47 S.W. 119

65 Ark. 475

REDD v. STATE

Supreme Court of Arkansas

July 9, 1898

Appeal from Drew Circuit Court MARCUS L. HAWKINS, Judge.

Cause reversed and remanded for a new trial.

H. King White and Jos. W. House, for appellants.

The court erred in permitting James Robinson to testify in this case, because he had been convicted of an infamous crime, and his competency had never been restored by a proper pardon. As to general purpose and effect of a pardon, see: 18 How. 307; 44 Ark. 122; 49 Ark. 176. A conditional pardon, before the condition is complied with does not restore competency as a witness. Bish. Cr. Law § 915, subhead 2; 30 Am. Rep 395; 23 Am. Dec. 150; 8 W. & S. 98; 49 Am. Rep. 684; 17 Am St. Rep. 832; 53 Am. Rep. 397; 8 Ct. Cl. 460; 7 ib. 443; 7 ib. 50; 47 Am. Dec. 557; 135 Mass. 48; 19 Am. Rep. 679; 10 S.E. 611; 53 Am. Rep. 397; 1 Parker, Cr. Rep. 52, 57. In order to restore competency, the pardon must be full and free. Whart. Cr. Ev. § 365; 18 How. 307; 24 Pick, 280. Delivery and acceptance are essential to effectiveness of a pardon. 1 Bish. Cr. Law, § 907; 7 Peters, 150; 8 Blatchf. 89, 96; 10 Ark. 284; 26 Ark. 74; 3 Benedict, 307; 84 Am. Dec. 433. If a witness, when sworn, is incompetent to testify, but, subsequently, his competency is restored by a pardon, he must be sworn again before he can testify. 1 Leach, C. C. 128; ib. 237; 8 Ore. 178; 58 Hun 482; 1 Bish Cr. Law (6 Ed.), § 914; Whart. Cr. Ev. (9 Ed.) 361. The pardon of witness John Henry was not properly moved. Mere proof of the granting of a pardon, without proof of its scope, its delivery, etc., was not sufficient to make witness competent. Whart. Cr. Pl. & Pr. § 535. Facts disqualifying witness being shown, the party introducing him must show that his disability was properly cured or removed. 50 Ark. 157; 6 Abb. Pr. (N. S.) 341; 14 Mass. 234; Weeks Dep. § 515; 17 Ohio 51; 56 Tex. 119; 29 Ia. 485; 48 Ark. 133. Testimony of an absent or deceased witness, at a former trial, cannot be proved by bill of exceptions taken at that trial. 54 Ill. 432; 102 Ill. 555. Merely having once seen writing of a person does not render competent a witness' opinion as to genuineness of writing alleged to be that of said person. 24 Ill. 595; 50 Cal. 462. It was error for the court to permit counsel for state, in his closing argument, to tell the jury that "if you do find the defendants guilty, every voice in this court house will be bear you out in the conclusion that the testimony was sufficient. Remarks and arguments calculated to subject the jury to the stress of outside influence and sentiment are improper and prejudicial. 44 Wis. 282; 49 Ind. 34; 14 S.W. 566; 30 N.W. 630; 79 N. Car. 589; 4 N.E. 911; 52 N.W. 873; 38 Kas. 53; 36 O. St. 201; 82 Mo. 67; 66 Mo. 588; 100 Ind. 268; 48 Ark. 131; 61 Ark. 130. Nor should counsel comment upon evidence which has been ruled out, or facts not in evidence. 15 Neb. 20; 66 Mo. 165; 70 Tex. 67; 5 A. 838; 61 Ia. 559; 22 Mo.App. 97; 24 ib. 65. The eighth instruction given for the state was erroneous because it made proof of an alibi for both defendants necessary to the availability of the plea for either. 63 Ark. 457. It was improper for the jury to be allowed to mingle with the crowd, and observe the sentiment against defendants, before reaching their verdict. 57 Ark. 1; 12 Ark. 782; 34 Ark. 341; 21 Kas. 480. The verdict is totally unsustained by the evidence, and should be set, aside. 24 Mo.App. 339; 18 Ill.App. 222; 29 Kas. 81; 37 Io. 316; 2 Ark. 360; 5 Ark. 407; 6 Ark. 86; ib. 428; 10 Ark. 638; ib. 491; 26 Ark. 309; 39 Ark. 491. In criminal cases, where the verdict is greatly against the weight of the evidence, a new trial will be granted. 13 Ark. 712; 34 Ark. 632, 639, 640.

E. B. Kinsworthy, attorney general, for appellee.

The governor may annex any condition to a pardon, so it be not illegal, immoral, or impossible. 10 Ark. 284. Pardons, like deeds, are construed most strongly in favor of the grantee. 10 Ark. 284; Bish. New Cr. Law, § 908; Whart. Cr. Pl. & Pr. § 523. Where a pardon contains a condition subsequent, it goes into effect immediately, and so continues until condition broken. 8 W. & S. 197; 1 Bish. New Cr. Law, § 914; 10 Ark. 284. If an impossible condition is annexed to a pardon, the condition is void, and the pardon absolute. 61 Ark. 364; 1 Bish. New. Cr. Law, § 915; Whart. Cr. Pl. & Pr. § 533; 4 Call (Va.), 35. The prosecuting attorney was the agent of Robinson in securing his pardon, and hence could accept same for him. 23 Tex.App. 287; 66 Mo. 266; 73 Ala. 517. The circumstances show delivery and acceptance. 18 Tex.App. 498. Placing the pardon in the hands of a thrid party, with the intention that he should deliver it, was a sufficient delivery. 3 Wash. Real Prop. pp. 288, 289; Tied. Real. Prop. §§ 813, 814; Jones, Real Prop. § 1272; Williams, Real Prop. pp. 189, 191. The pardon being for the guarantee's benefit, acceptance is presumed. Whart. Cr. Pl. & Pr. § 583; 31 O. St. 206. Appellant waived all objections grounded upon failure to re-swear witness after he was pardoned, by failure to object at the time. Whart. Cr. Ev. § 359; 3 Rice, Ev. 259. A convict is not utterly incapable of taking an oath. Sand. & H. Dig., §§ 2910, 2912; 49 Ark. 176. An oath binding upon him. 10 Ohio 220; 10 Johns. (N. Y.) 167; 23 N.Y. 85; McLean, Cr. Law, § 865; 2 Whart. Cr. Law, §§ 1280 and 1284. The extent to which a cross-examination may be permitted is largely within the discretion of the court, and abuse of this discretion must appear to constitute error. Clark's Cr. Proc. 550; 7 Am. & Eng. Enc. Law, 108, 109, 61 Ark. 52; 3 Rice, Ev. § 219; 37 Ohio St. 178; 121 Mo. 201; 121 Ind. 423; 88 Wis. 545; 131 N.Y. 650. A witness may be cross-examined as to his interest in the case. 18 Ore. 440; 3 S. Dak. 134; 40 Neb. 11; 7 Am. & Eng. Law, 112, 113. Having once seen a person write is sufficient to entitle a witness' opinion as to the genuineness of writing said to be that person to go to the jury. 1 Greenl. Ev. § 577; Whart. Cr. Ev. §§ 551-553; 3 Rice, Ev. 109; 9 Ill. 89. It was not error to allow the prosecuting attorney to express his belief that the witnesses for defense were "a lot of liars." 58 Ark. 353; 34 Ark. 658; 66 N.W. 41; 22 So. 497; 104 Ind. 467; 105 Ind. 499. The subject and range of the argument of counsel in a matter within the sound discretion of the trial court, and all presumptions are in favor of the proper exercise of this discretion. 4 Am. & Eng. Enc. Law, 875; 34 Ark. 650; 22 S.W. 1021; 55 Mo. 520; 92 Ind. 477, 55 N.W. 753. The argument used by the counsel for state were proper. 50 N.W. 570; 71 N.W. 504; 22 S.W. 1021; 36 S.W. 550; 75 Mo. 357; 124 Ill. 218; 2 Enc. Pl. & Pr. 713, 714; 2 West. Rep. 345; 28 N.Y. 327; 102 Ind. 550; 4 N.E. 870, 876; ib. 63, 68; 9 P. 622; 22 S.W. 1021; 36 ib. 550; 8 West. Rep. 393; 5 N.E. 203; 27 N.W. 147; 11 N.W. 703; 50 ib. 570; 75 Ind. 215, 219; 105 Ind. 469, 480; 40 Ill. 488, 501; 76 Mo. 121, 125; 53 Mo. 509, 514; 79 Mo. 461; 75 ib. 357; 87 ib. 615; 56 Miss. 299, 308; 20 Kas. 650, 651-5; 27 Ga. 649; 68 Ala. 476; 27 N.W. 147; 11 ib. 174; ib. 703; 6 N.E. 126; 9 P. 407; 69 Wis. 32; 7 Lea. (Tenn.), 232; 14 Lea, 424; 95 Ill. 394, 405; 2 Ell. Genl. Pract. § 693, p. 821; 4 Am. & Eng. Enc. Law, p. 875-9, and notes. This court will not reverse for want of evidence where any evidence supports the verdict. 43 Ark. 317; 18 Ark. 303, 366; 43 Ark. 367; 51 Ark. 115; 47 Ark. 367.

H. King White and Jos. W. House, in reply.

The condition in this pardon of Robinson is a condition precedent. 64 Cal. 31. A pardon must recite the indictment, the judgment and conviction, to be effective. 43 Cal. 439; 37 Am. Rep. 463; 5 Ind. 359; 1 Jones, Law, (N. C.), 1; 8 Hawk. Pl. Cr. ch. 37, § 8, p. 533; 4 Bl. Comm. p. 339. Even if the pardons were sent to the prosecuting attorney to be delivered to the grantee, they are not good until they are accepted by the grantee. 11 Barb. 34; 1 Allen, 255; 12 Johns. 419; 6 Am. Dec. 146; 12 Am. Dec. 196; 3 Wash. Real. Prop. 292. There is no presumption that a pardon is accepted because it is intended for the benefit of the grantee. 4 Gilm. 159. A pardon to restore citizenship does not restore competency as a witness. 43 Cal. 439. It was incumbent upon the prosecution to show that a pardon was granted to, delivered to and accepted by witness Henry. 14 Mass. 234; 50 Ark. 157. Where a record of a lost writing was kept, the writing cannot be proved by parol, but only by a certified copy. 28 S.W. 536; Underhill, Ev. § 208; 18 Tex.App. 521, 522.

OPINION

WOOD, J.

This appeal is from a conviction of murder in the first degree.

First. One of the grounds of the motion for new trial is as follows: "Because the court erred in permitting the prosecution to read to the jury, as evidence in the case, the testimony of John Henry, given at a former trial of this case; the same being irrelevant, incompetent, and no proper foundation having been laid for the introduction of same." Witness H. W. Wells read form the bill of exceptions prepared for the first appeal what counsel on both sides agree was the testimony of John Henry. In the midst of this testimony, as set forth in said bill of exceptions, occurs this recital in parenthesis: "At this point attorneys for defense objected to the witness testifying, whereupon the pardon was produced restoring him to citizenship, so the witness was permitted to testify and proceeded as follows," etc.: "The defendant at the time objected to the testimony of the said John Henry being read to the jury, on the ground that no proper foundation had been laid therefor, and because the said Henry had been convicted of a felony, and it was not shown that he had ever been pardoned.

Without setting it out in detail, it suffices to state that the testimony of Henry tended to connect...