Reynolds v. State, CR
| Decision Date | 23 July 1973 |
| Docket Number | No. CR,CR |
| Citation | 497 S.W.2d 275,254 Ark. 1007 |
| Court | Arkansas Supreme Court |
| Parties | Danny REYNOLDS, Appellant, v. STATE of Arkansas, Appellee. 73--48. |
Sam Sexton, Jr., Fort Smith, for appellant.
Jim Guy Tucker, Atty. Gen. by O. H. Hargraves, Deputy Atty. Gen., Little Rock, for appellee.
On September 5, 1972, Danny Reynolds was found guilty of manslaughter of Willie Highfill on January 7, 1972. He was sentenced to two years in the pnitentiary on the basis of the jury's fixing that term when it found him guilty of voluntary manslaughter on a trial on a charge of first degree murder. We find reversible error in the circuit judge's failure to exclude a witness, Paul Highfill, from the courtroom during the trial.
Paul Highfill was a brother of the victim, and was present at the time and place where Willie Highfill was mortally wounded. He was a participant in what seems to have been a running quarrel between Reynolds and his companions and three Highfill brothers. As a matter of fact, the conflict appeared to have had its inception in an encounter climaxed by fisticuffs between appellant and Paul Highfill. He had given a statement about the occurrence to Lt. Troy Dale Oliver, the investigating state police officer. He was subpoenaed as a witness both by the state and the defendant. The rule for sequestration of witnesses was invoked by appellant. Paul Highfill had been sworn as a witness. The prosecution asked that all the Highfill boys be permitted to sit at the counsel table, but the trial judge asked whether this one would be a witness. Upon being told that he would, the judge then inquired whether the prosecuting attorney felt like he needed the assistance of a member of the victim's family, and was told that the state would be prejudiced without the assistance of the party 'who followed this throughout.' The court then granted permission for this one member of the family to sit with the prosecuting attorney, over appellant's continued objection to relaxation of the rule. It appears that this witness was in the courtroom throughout the trial. He was not called as a witness by the state, but was called by appellant. He first admitted having made a statement to the state police officer on the day after the shooting, which effectually absolved appellant and incriminated someone else as the one who fired the shot which proved fatal to his brother. After cross-examination, he expressed doubt about having made the statement, and stated that, in any event, he did not feel the same way when he was testifying.
Arkansas Statutes Annotated § 43--2021 (Repl.1964) states the rule in mandatory language. Not only does it require that any witness be excluded at the request of an accused or his attorney, but it states that the purpose of the exclusion is that the excluded witness may not hear the testimony of other witnesses. Only recently, we recognized that the legislature had intended by Act 243 of 1955 to eliminate the discretion theretofore vested in the trial court in criminal cases. Vaughn v. State, 252 Ark. 505, 479 S.W.2d 873. True it is, we recognized that there were cases in which a denial of the request might not be prejudicial. But, we must presume that error is prejudicial unless its absence is shown or is manifest from the record. Osborne v. State, 237 Ark. 7, 170, 371 S.W.2d 518. The only contention advanced by the state in arguing that the error was not prejudicial is that any error was cured by the state's failure to call the witness. We cannot follow this argument. Even though the trial judge refused to consider Paul Highfill as a hostile witness when called by the defendant, he had been involved in combat with the appellant on the evening his brother was killed, his presence in the courtroom to assist the prosecuting attorney was certainly indicative of hostility toward appellant's defense, his testimony was certainly not as advantageous to the accused as might have been anticipated from the statement he had made to the police and his vacillation on the giving of that statement came after he had heard every...
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