Taylor v. State

• Decision Date: 13 October 1952
• Docket Number: No. 4702,4702
• Citation: 251 S.W.2d 588,220 Ark. 953
• Parties: TAYLOR v. STATE.
• Court: Arkansas Supreme Court

Page 588

251 S.W.2d 588

220 Ark. 953

TAYLOR v. STATE.

No. 4702.

Supreme Court of Arkansas.

Oct. 13, 1952.

Chas. F. Cole and S. M. Bone, Batesville, for appellant.

Ike Murry, Atty. Gen., Dowell Anders, Asst. Atty. Gen., for appellee.

WARD, Justice.

C. E. Taylor, appellant, was charged by information on 16 counts for forging and uttering certain title-retaining notes. There were eight separate notes involved, supposedly signed by eight different people, all of which were sold to one J. Fred Livingston. At the beginning of the trial the Court instructed a verdict of not guilty on the first four counts [involving two separate charges of forgery and two of uttering] because they were barred by the statute of limitation. Later on the Court instructed a verdict of not guilty on all remaining counts for forgery, and appellant was tried and convicted on all remaining six counts for uttering. Punishment was fixed at two years in the penitentiary on each count to run concurrently and sentence was accordingly pronounced. Appellant prosecutes this appeal.

In view of the conclusion we hereafter reach, only a brief outline of the facts will be sufficient. Appellant had for some time been engaged at Batesville in buying and selling secondhand automobiles. As is usual in such a business, when appellant sold a car he would take a title-retaining note from the purchaser for a portion of the sale price and would then sell the note in order to secure money to make other purchases for resale; and, also, as is usual, he would require the purchaser to take out insurance on the car as a matter of financial protection to himself and the one to whom he sold the note.

All the notes involved in this case were sold at a discount to one J. Fred Livingston, who in turn sold them with recourse to the First National Bank at a smaller discount. Livingston, who was engaged in the insurance business, also wrote an insurance policy on each car involved, supposedly getting his information relative to name, address, occupation, etc., from the appellant.

After several monthly payments were made to the bank on each note here involved, the payments stopped and the bank quite naturally looked to Livingston for payment. It then developed, after thorough investigation, that none of the automobile purchasers and note signers could be located or identified. This led to the assumption that the names of the supposed purchasers were fictitious and that the notes were forgeries, and, of course, led to the charge against appellant.

The enforcement officers shrewdly surmising, it seems, that it was going to be difficult to produce testimony showing appellant's guilty knowledge that the notes were forgeries when he sold them to Livingston, had a subpoena issued for appellant's wife sometime before the trial. She appeared before the sheriff and the prosecuting attorney and gave them a specimen of her handwriting. At the trial this specimen of handwriting was introduced by the State as 'Exhibit D' to the sheriff's testimony, over the objections of appellant. A handwriting expert, using 'Exhibit D' as a basis of compensation, testified that in his opinion appellant's wife had written the fictious names on the said notes. It is not and cannot be denied that this testimony was calculated to lead the jury to believe appellant had knowledge that the notes were forgeries at the time he sold them to Livingston.

Although several questions are raised by appellant there is only one which we need to decide, and that is: was 'Exhibit D' admissible in evidence? After careful deliberation by the Court, we have reached the conclusion that 'Exhibit D' should not have been admitted in evidence.

At common law neither spouse was a competent witness against the other. Following this statement made in the case of Jenkins v. State, 191 Ark. 625 at page 627, 87 S.W.2d 78, at page 79, the Court said: 'This court is thoroughly committed to the rule stated above except in so far as it has been changed by statute.' Then, immediately after this, the Court also said: 'It goes without saying that this rule might be changed by statute, but such a statute, being in derogation of the common law, must be strictly construed.'

In 1903 such a statutory change was made by Act No. 81 [now Ark.Stats. § 43-2020] which permitted one spouse to testify against the other in criminal cases in which an injury has been done by one against the person or property of the other. This statute has been construed many times and obviously affords no support to the State's position here. See Murphy v. State, 171 Ark. 620, 286 S.W. 871, 48 A.L.R. 1189; Robison v. State, 191 Ark. 455, 86 S.W.2d 927; and Sutton v. State, 197 Ark. 686, 122 S.W.2d 617.

The only other statutory change in the common law regarding the admissibility of a spouse's testimony in criminal cases was Act No. 14 of 1943 [now Ark.Stats. § 43-2019]. This statute clearly...