Shackleford v. State

• Decision Date: 05 March 1928
• Docket Number: 263
• Citation: 3 S.W.2d 962,176 Ark. 578
• Parties: SHACKLEFORD v. STATE
• Court: Arkansas Supreme Court

3 S.W.2d 962

176 Ark. 578

SHACKLEFORD v. STATE

No. 263

Supreme Court of Arkansas

March 5, 1928

Appeal from Washington Circuit Court; J. S. Maples, Judge; affirmed.

Judgment affirmed.

George A. Hurst, for appellant.

H. W Applegate, Attorney General, and Darden Moose, Assistant, for appellee.

OPINION

MCHANEY, J.

Appellant was convicted for manufacturing liquor, and sentenced to one year in the penitentiary. Appellant was a witness in his own behalf, and, on cross-examination, he was asked if he remembered being down at Hattabaugh's place with a fruit jar of liquor and a gun, at which time he was about to get into a fight with the Hattabangbs, and he denied being there with liquor, or that he had any gun, or any trouble with the Hattabaughs. Upon objection, the court held that the witness could answer whether he had any liquor there.

This testimony was competent, as affecting the credibility of the witness. In the recent case of Jim Bowlin v State, 175 Ark. 1115, 1 S.W.2d 553, where the assignment of error was that the court had erred in permitting the prosecuting attorney to ask the appellant, on cross-examination, if he was the same Jim Bowlin that had been sent to the penitentiary from Newton County for cutting a preacher up, and also what he was convicted of, and why he had served a jail sentence at Dardanelle about a year before, we there said: "Appellant was a witness in his own behalf, and the above questions were asked on cross-examination, and it is well settled in this court that the defendant may be asked on cross-examination about other crimes committed by him, whether he has been in jail, the penitentiary, or any other place that would tend to impair his credibility "; and we there quoted from the leading case of Hollingsworth v. State, 53 Ark. 387, 14 S.W. 41, as follows: "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 the 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." See also Whittaker v. State, 171 Ark. 762, 286 S.W. 937.

The cases cited by appellant, to the effect that a witness may not be asked concerning mere accusations of other crimes, are not in point here. Here the witness was asked concerning a fact peculiarly within his knowledge, that is, whether he had had a fruit jar with liquor in it at a certain place, and brandished a gun. There was no error in permitting this cross-examination.

After the conclusion of the appellant's testimony, the State called Henry Lollar as a witness in rebuttal, who contradicted appellant regarding the fruit jar with liquor in it, and the brandishing of a gun in connection with the Hattabaughs, and appellant contends that the questions asked Earle Shackleford were on collateral matters, and that the admission of Henry Lollar's testimony in contradiction thereof was erroneous and prejudicial. A sufficient answer to this assignment is that no objection was made to the admission of the testimony of Henry Lollar, who was fully cross-examined by counsel for appellant, both with regard to the liquor and the brandishing of pistol.

At the conclusion of this witness testimony, counsel for appellant moved the court to exclude the testimony of the witness Henry Lollar, which was overruled by the court, and he excepted. This court has many times held that, where no objection is made to the testimony at the time it is offered, a motion to exclude cannot be insisted upon...