Turner v. State

• Decision Date: 01 November 1926
• Docket Number: (No. 228.)
• Citation: 287 S.W. 400
• Parties: TURNER v. STATE.
• Court: Arkansas Supreme Court

Page 400

287 S.W. 400

TURNER v. STATE.

(No. 228.)

Supreme Court of Arkansas.

November 1, 1926.

Appeal from Circuit Court, Ouachita County; L. S. Britt, Judge.

Guy Turner was convicted of assault with intent to kill, and he appeals. Affirmed.

L. B. Smead and J. C. Clary, both of Camden, for appellant.

H. W. Applegate, Atty. Gen., and Jno. L. Carter and Darden Moose, Asst. Attys. Gen., for the State.

SMITH, J.

Appellant was convicted of the crime of assault with intent to kill, alleged to have been committed by shooting one Mrs. W. M. Skinner, who testified that appellant came into the tent where she was living and demanded a drink of "choc" — a kind of beer — which she furnished him. After drinking the choc appellant demanded that Mrs. Skinner go out of the tent with him, and enforced the command by drawing a pistol on her. She obeyed, and through fear permitted appellant to have sexual intercourse with her, after which act he commenced shooting at her with a pistol, and fired three shots at her, and one of the bullets found lodgment in her foot.

The bill of exceptions contains the following recital:

"Thereupon, a jury came, and before the selection or rejection of each juror called, the state, over the objection of the defendant, was permitted to ask each juror the following question: `Would you — if the state, relying on a witness for conviction who has an unsavory reputation — would you let the fact of said witness' unsavory reputation influence you in arriving at your verdict?' And each juror, over the objection of the defendant, was permitted to answer that he would not. To which question and answer the defendant duly saved his exceptions as to each juror."

The action of the court in permitting the prosecuting attorney to ask this question in qualifying the jurors is assigned as error in the motion for a new trial, and no other error is insisted upon for the reversal of the judgment.

It will be observed that the record does not recite that only those jurors were held competent who qualified by answering this question in the negative. It does appear that each juror, over the objection of appellant, was permitted to answer that he would not let the unsavory reputation of a witness influence him in making up his verdict; but that recital is not sufficient to show that the court ruled that only such persons so qualifying were competent to serve as jurors in the case.

Such a ruling would have been erroneous, because it is the peculiar province of the jury to determine the weight and effect to be given the evidence of any witness, and the court could not, at any stage of the trial, usurp this function. Certainly it would be improper for the court to instruct that the jury should disregard the unsavory reputation of a witness in making up their verdict, and, of course, it would be improper for the court to hold that only jurors were competent who would disregard and not consider reputation.

Indulging — as we must do — every reasonable presumption in favor of the regularity and fairness of...