Roy v. State

• Decision Date: 04 March 1912
• Citation: 145 S.W. 190,102 Ark. 588
• Parties: ROY v. STATE
• Court: Arkansas Supreme Court

145 S.W. 190

102 Ark. 588

ROY v. STATE

Supreme Court of Arkansas

March 4, 1912

Appeal from Lee Circuit Court; Hance N. Hutton, Judge; affirmed.

Judgment affirmed.

H. F Roleson, for appellant.

In the absence of a statute authorizing it, a party is not allowed to contradict his own witness; and even where there is a statute such as ours authorizing it, it is only permissible to do so where the witness has testified to some substantive fact prejudicial to the party calling him. Jones on Evidence § 855; 40 N.W. 70; 93 Ind. 133; 78 S.W. 519; 29 S.W 471; 20 S.W. 549; 37 S.W. 761, 763; 10 Enc. Pl. & Pr. 320; 72 Ark. 582.

Hal L. Norwood, Attorney General, and William H. Rector, Assistant, for appellee.

It was permissible under the statute for the State to contradict its witness. Kirby's Digest, § 3137; 42 Ark. 542. While it is true that such contradicting testimony could be considered only for that purpose, and not as evidence against the defendant, yet appellant can not complain that the court failed to so caution the jury, without having requested the court to do so. 65 Ark. 371; 53 Ark. 381.

OPINION

MCCULLOCH, C. J.

Defendant, Eli Roy, was indicted by the grand jury of Lee County for the crime of grand larceny, and was convicted. The accusation is that he stole a cow, the property of one Mary Overton. The stolen animal was identified by the ear-marks, general appearance, and color, and the evidence tended to show that defendant, after stealing the cow, drove her to Marianna and sold her to a butcher. The defendant lived about two miles distant from Mary Overton, and the evidence establishes the fact that he knew that the cow belonged to her. The cow was running out, but was accustomed to coming home about every two weeks to be salted. Witnesses testified that they saw defendant driving the cow to Marianna, and the butcher testified that defendant sold her to him.

We are of the opinion that the evidence was sufficient to warrant the belief that the cow which defendant sold to the butcher was the property of Mary Overton, and that it was stolen by defendant. The evidence was sufficient, therefore, to sustain the verdict.

The State introduced as a witness one Lonnie Burnsides, and undertook to prove by him that, on or about September 16, the day which the evidence shows defendant sold the cow to the butcher in Marianna, he (witness) passed defendant's house late one evening and saw this cow in defendant's lot. The witness stated that he didn't see the cow in the lot, but saw her on the outside and near the side of the road with a drove of cattle. Witness then proceeded to testify that he had frequently seen this cow since then, even as late as about three weeks before the trial, and that he notified Mary Overton's son of the fact that he had seen the cow. He further testified that Mary Overton's son was with him on one occasion, and saw the cow, which was long after defendant is alleged to have stolen her and sold her to the butcher.

The prosecuting attorney then asked this witness, for the purpose of impeaching him, if he had not stated, at a certain place and on a certain occasion, in the presence of witnesses that he saw the cow in defendant's lot, and the witness denied that he had made any such statement. Later the prosecuting attorney was permitted to prove, over defendant's objection, that the witness, Lonnie Burnsides, had made the statement, on the occasion named, about seeing the cow in defendant's lot.

Our statute provides that the party producing a witness "may contradict him with other evidence, and by showing that he has made statements different from his present testimony." Kirby's Digest, § 3137.

Counsel for defendant invokes the rule, which seems to be sustained by authority, that it is error to permit a party to thus impeach his own witness except where the witness testifies to some matter...