Scott v. State
| Decision Date | 21 May 1887 |
| Citation | 4 S.W. 750 |
| Parties | SCOTT <I>v.</I> STATE. |
| Court | Arkansas Supreme Court |
W. H. Hyatt and David A. Gates, for appellant. Dan W. Jones, Atty. Gen., for appellee.
On the trial of this indictment, the defendant offered one Burton as a witness. The state objected to his being sworn, alleging that he had previously been convicted of petit larceny before a justice of the peace. The trial was started, and a subpœna duces tecum issued for the justice, who came, but did not bring his docket. The state was then permitted, over the objection of the defendant, to prove the conviction by parol testimony, and to read to the jury a document, which purported to be, not an exemplification of the docket entries made in the course of the prosecution, but a report of the convictions in his court, which he had before that time filed in the clerk's office, as required by law. This was error. The judgments and orders of a justice of the peace are kept in a docket. They are quasi records, and provable only by the production of the docket itself, or by a certified copy. The record was in existence, and accessible. It therefore constituted the best evidence of the fact. Mansf. Dig. §§ 2824, 4032; Gates v. Bennett, 33 Ark. 475; 1 Greenl. Ev. §§ 375, 513; 1 Phil. Ev. (4th Amer. Ed., Cowan & Hill's Notes,) c. 3, note 14; U. S. v. Biebusch, 1 McCrary, 42.
The attorney general suggests that, inasmuch as the bill of exceptions does not show what the testimony of this witness would have been, it does not appear that the defendant was prejudiced by his exclusion. Where evidence is ruled out on account of the subject-matter offered to be proved, it is necessary to set out the proposed testimony in order that the court of errors may be able to judge whether it is relevant and material. But when a witness is rejected on the ground of his legal disability to testify in a court of justice, the presumption is he would have been rejected, no matter how important his evidence might have been. Pow. App. Proc. c. 5, § 12; State v. Jim, 3 Jones, (N. C.) 348.
The defendant was charged with an assault upon one Primus Bannister, with intent him, the said Primus, to kill and murder. It was proved that the defendant was on bad terms with Primus, and also with several members of his family or inmates of his house, and that he repeatedly made threats against all of them. About 10 o'clock of an August night, when the moon was shining brightly, and while Primus and his family were sitting in an open hall of his house, the defendant was recognized in the act of creeping along a picket fence, which ran a few yards from the house, with a double-barrel shot-gun in his hand, and when he came opposite the hall he discharged first one barrel, and then the other, among the group of persons sitting there. Luckily no serious damage was done. The gun was loaded with squirrel shot, and the charge lodged in the house,...
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