Schooley v. State

• Decision Date: 23 January 1928
• Docket Number: 141
• Citation: 2 S.W.2d 67,176 Ark. 895
• Parties: SCHOOLEY v. STATE
• Court: Arkansas Supreme Court

2 S.W.2d 67

176 Ark. 895

SCHOOLEY v. STATE

No. 141

Supreme Court of Arkansas

January 23, 1928

Appeal from Howard Circuit; B. E. Isbell, Judge; reversed.

Case reversed and remanded.

Luke Monroe and Feazel & Steel, for appellant.

H. W Applegate, Attorney General, and John L. Carter, Assistant for appellee.

OPINION

MEHAFFY, J.

Appellant was indicted, tried and convicted in the Howard Circuit Court on a charge of seduction, and his punishment fixed at one year in the penitentiary and a fine of one hundred dollars. Appellant filed motion for new trial, which was overruled, exceptions saved, and appeal prosecuted.

The proof shows that appellant, who was about twenty years old, had intercourse with the prosecuting witness, Dura Stone, a girl about eighteen years old. Appellant admitted having intercourse with her.

Dura Stone testified that appellant promised to marry her.

Several men testified that they had had intercourse with Dura Stone, some of them fixing the date at which they had intercourse with her at a time prior to the time she says appellant promised to marry her. She denied having intercourse with any one except appellant, either before or after the time she says appellant promised to marry her.

Since appellant admitted having intercourse with the prosecutrix, there was no necessity for other corroboration of her testimony as to intercourse. There was some evidence corroborating the statements of prosecutrix as to promise of marriage.

Appellant's first contention is that the court erred in not permitting the defendant to question Vee Stone, on cross-examination, with reference to her past conduct. On cross-examination Vee Stone, sister of Dura Stone, was asked: "I will ask you if it isn't true on that occasion Max Dyer had intercourse with you?"

This question was objected to, and the court said: "That is improper," and defendant's counsel said, "We offer to show that." Objection was made to the ruling of the court, and exceptions saved. Witness was then asked: "Do you remember going to a dance at Hunter's in the fall of 1925?" She answered: "I do not remember. I went to several dances there, but do not remember when."

The court then said: "What is the purpose of that?"

The attorney for the defendant said: "We offer it as affecting her credibility. We offer to show by the witness that she attended a dance at Abb Hunter's, in the fall of 1925, and in returning she was overtaken by Sam Schooley and Hilton Keath, and that she and Dura rode home with these men. That at that time she and her sister were under the influence of liquor, and that she drove the car into a telephone post."

Thereupon the court said: "You can ask Dura that, because she is the prosecutrix. You can ask that so far as it applies to the prosecuting witness, but not as to her."

Defendant's attorney said: "At present we will not pursue it further," and saved exceptions to the court's ruling.

A witness may always be asked, on cross-examination, questions bearing on his or her character which tend to throw light on matters which are proper for the purpose of impeachment. She may be asked about particular acts which affect her credibility for the purpose of impeachment, and may be asked whether he or she has committed particular wrongful or immoral acts if the commission of such acts would affect the credibility of the witness.

The court therefore erred in not permitting the defendant to ask Vee Stone the questions about her conduct.

This court, in a recent case, said:

"It has always been held that, within reasonable limits, a witness may, on cross-examination, be very thoroughly sifted upon his character and antecedents. The court has a discretion as to how far propriety will allow this to be done in a given case, and will or should prevent any needless or wanton abuse of power. But, within this discretion, we think a witness may be asked concerning all antecedents which are really significant and which will explain his credibility. * * * A witness, upon cross-examination, may be asked whether he has been in jail, the penitentiary or State prison, or any other place that would tend to impair his credibility, and how much of his life he has passed in such places." Whittaker v. State, 171 Ark. 762, 286 S.W. 937.

In the last cited case many of the authorities are cited and reviewed, and we deem it unnecessary to set them out here. The well-established rule in this State is that the witness, on cross-examination, may be asked any question that affects the credibility of the witness. A witness, however, cannot be asked questions as to the conduct and declarations of others, but the question must be confined to his own conduct. And where witnesses are asked, on cross-examination, as to particular facts, as in this case, for the purpose of impeaching the witness, the answer of the witness concludes the party asking the question, and cannot be contradicted by other evidence.

The State, however, contends that there is nothing in the court's ruling on these questions that would justify this court in reversing the judgment of the lower court, and states that this case comes well within the rule of this court that, where a question is excluded on cross-examination and exceptions saved thereto, in order to show that prejudice resulted, the record must show what the answer of that witness would have been, and cites the recent case of Williams v. State, 175 Ark. 752, 2 S.W.2d 36, delivered December 12, 1927. In that case the court said:

"At the outset it may be stated that the questions asked the witness on cross-examination by counsel for defendant were proper, under Hughes v. State, 70 Ark. 420, 68 S.W. 676, and Martin v. State, 161 Ark. 177, 255 S.W. 1094."

The court also said in that case: "In this connection it may be stated, however, that it is a settled rule of this court not to reverse judgments except for errors that are prejudicial to the rights of the defendant;" and cited a number of cases.

The court further said in the last case mentioned:

"So it will be seen that, if Miss Williams had answered the question in the negative, this would have ended the matter. If she had answered it in the affirmative, the answer would have been allowed to go to the jury for what they considered it worth as affecting her credibility. She did not answer it at all, and a majority of the court are of opinion that this brings the case within the general rule that, where evidence is ruled out as being incompetent, there must be set out...