Ward v. State

• Decision Date: 15 February 1902
• Citation: 66 S.W. 926,70 Ark. 204
• Parties: WARD v. STATE
• Court: Arkansas Supreme Court

66 S.W. 926

70 Ark. 204

WARD v. STATE

Supreme Court of Arkansas

February 15, 1902

Appeal from Phillips Circuit Court HANCE N. HUTTON, Judge.

Reversed.

Judgement reversed.

McCulloch & McCulloch and H. F. Roleson, for appellant.

The proof of ownership was not sufficient. 2 Russ. Cr. 48; Bish Cr. Pro. § 721.

George W. Murphy, Attorney General, for appellee.

The proof of ownership was sufficient. Sand. & H. Dig., § 2080; 32 Ark. 203.

HUGHES J. BUNN, C. J., dissenting.

OPINION

HUGHES, J.

The appellant was indicted for and convicted of the larceny of a yearling, and appealed to this court. There was some testimony tending to show that the appellant bought the yearling from Charlie Lawrence, who was a witness in the case.

On the trial the state offered to introduce a letter written by defendant; it being agreed by counsel for defendant that W. R. Hampton, if present, would testify that he was jailer at Marianna; that in September, 1900, while defendant was in jail, witness allowed defendant's wife to visit him in the jail, and while she was in there witness saw defendant slip something to her; that when she came out witness took the article away from her, and it was the note offered in testimony wrapped in a leaf of a Bible. The defendant objected to the introduction of the testimony of Hampton and of the letter because the same was irrelevant. The court overruled the objection, to which the defendant excepted. The letter was as follows: "To Lies Nesba: Mr. Lias Nesba, I want you and Johnson to get together, and Charlie Lawrence, and get him to say that he sold me that yearling. If you will do that for me, I have got them. You see Charlie, and have a talk with him, you and Johnson. I will have you and Johnson summons at once. Don't get afraid. Now, help me. if it was you, I would do that for you. I want you and Johnson to get ready. I want a new trial as soon as you get this note. I want you all to swear that Charlie Lawrence told you that he sold me that yelen. Since I have been in jail, he told you that. As soon as you read this note, you burn it up. I am going to have you summons. Be ready. Your friend, B. W. Ward, in jail, Marianna, Ark. Wife, send for lies nesba to come at once. You give him this note, and tell him to get ready at once. I want to have a new trial Tuesday, and as soon as you give this note to lies, then you go and tell my lawyer that I want to call a new trial, and i will come home. B. Ward."

That part of the letter to the wife was a confidential communication from husband to wife, and privileged, and not admissible in evidence, but there is nothing material in this part of it. 1 Greenl. Ev. § 254. But the majority of the judges are of the opinion that that part of the letter not addressed to the wife, but to "Lies Nesba," is not privileged, though taken from the wife against her will, and was admissible in evidence to show the purpose for which it was written. The jury might think it was an attempt to manufacture testimony, or that it was an attempt to get Charlie Lawrence to tell the truth, and say he had sold the steer to the defendant, which he had sworn he did not do, on the trial. The defendant was contemplating a motion for a new trial when the letter was written. The defendant had testified that Charlie Lawrence sold him the yearling, claiming that he owned...