Turner v. State

• Decision Date: 02 October 1911
• Citation: 139 S.W. 1124,100 Ark. 199
• Parties: TURNER v. STATE
• Court: Arkansas Supreme Court

139 S.W. 1124

100 Ark. 199

TURNER v. STATE

Supreme Court of Arkansas

October 2, 1911

Appeal fro Hempstead Circuit Court; Jacob M. Carter, Judge affirmed.

Judgment affirmed.

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

1. Whether or not it was proper for the prosecuting attorney to ask the witness at the beginning of his testimony if he had been convicted of petit larceny, it was certainly within the discretion of the court to allow it at that time; and, without a showing to the contrary, this court will not presume that the trial court abused its discretion.

2. The admission by a witness that he had been convicted of an infamous crime renders record proof thereof unnecessary and makes the party incompetent to testify. 67 Ark. 278.

When a defendant in a criminal case becomes a witness in his own behalf, he is subject to impeachment the same as any other witness. 58 Ark. 473; 56 Ark. 7; 46 Ark. 141.

Although the statute making a defendant a competent witness in his own behalf removes the common-law disqualification arising from infamy, yet the fact of his conviction can be used to affect his credibility. 49 Ark. 176; 74 Ark. 397; 44 Ark. 122; 1 Greenleaf, Ev. § 461b.

OPINION

FRAUENTHAL, J.

This is an appeal from a judgment convicting the defendant, Jim Turner, of the crime of grand larceny. A number of errors are assigned in the motion for a new trial why the judgment should be reversed; but, after careful examination of the record, we think only two of these alleged errors of sufficient importance to require notice. These relate to the refusal of the lower court to give certain instructions requested by the defendant, and to its action in permitting the State to ask defendant upon his examination as a witness if he had been previously convicted of petit larceny.

The indictment charged the defendant with the larceny of a cow, the property of one Bammer Harris. She was the owner of the cow mentioned in the indictment, and of other cattle which ran on the range about three miles from where defendant lived. This and another cow disappeared from the range, and about five or six weeks thereafter they were discovered in the pasture of one Jewel Bruce, who testified that he had purchased them from one Virge Merritt. Merritt testified that he had purchased them from the defendant. The testimony on the part of the State tended to prove that the defendant had these two cows in a pen near where he lived, and sold them to Merritt for fourteen dollars, and in a short time thereafter fled from the county. The defendant introduced testimony tending to prove that he had been authorized by said Harris to sell the cows. He testified, however, that he had not sold them, but that Merritt had only spoken to him relative to purchasing them.

The defendant requested the court to instruct the jury in effect that, although they believed from the evidence that the defendant sold the cow to Merritt, still, if they should find that the defendant was authorized to sell the cow, or honestly believed that he was so authorized, he would not be guilty of larceny. This instruction, we think, was fully covered by the following, which was given at the defendant's request: "3. You are instructed that if the defendant had permission, or honestly believed he had permission, to sell her, he should be acquitted, although you may find that he sold said cow and appropriated the money to his own use."

The defendant also requested the court to instruct the jury in effect that if defendant had permission to sell the cow, and did sell her, and thereupon appropriated the money to his own use, he would not be guilty of the crime of larceny, and could not be convicted under the indictment in this case, although he might have been guilty of some other offense. But we are of the opinion that this instruction was also covered by the charge of the court telling the jury that before the defendant could be convicted of larceny, it devolved upon the State to prove that the defendant did "unlawfully and feloniously take, steal, drive and carry away," the cow in question. Under these instructions, the jury must clearly have understood that if the defendant was only guilty of embezzlement he could not be convicted under the indictment.

The defendant also requested the court to give an instruction defining what an accomplice was; and he asked this instruction on the theory that Merritt was an accomplice, and that his testimony under the law was required to be corroborated. We are of the opinion that this instruction was also covered by others given by the court, in which it charged the jury in substance that if the evidence tended to show that Merritt was an accomplice, or to connect him with the commission of the crime, then his testimony would have to be corroborated by other evidence connecting the defendant with the commission of the crime before the conviction of the defendant would be authorized.

There were other instructions requested by the defendant which were refused by the court, but we are of the opinion that they were fully covered by other instructions which were given; so that the court fully and correctly instructed the jury relative to every phase of the case.

Defendant was offered as a witness in his own behalf,...