Ware v. State

• Decision Date: 11 October 1909
• Citation: 121 S.W. 927,91 Ark. 555
• Parties: WARE v. STATE
• Court: Arkansas Supreme Court

121 S.W. 927

91 Ark. 555

WARE v. STATE

Supreme Court of Arkansas

October 11, 1909

Appeal from Calhoun Circuit Court; George W. Hays, Judge; reversed.

Judgment reversed and cause remanded.

C. L Poole, Thornton & Thornton and Davis & Pace, for appellant.

The testimony of Bell Wood was incompetent, and its admission prejudicial. She admitted that she had never told any one prior to the trial who the father of the bastard child was and that the deceased did not know that appellant was accused of being its father. One who is accused of a crime cannot be convicted thereof by proof that he has committed another crime unless that other crime throws some light upon the motive of the defendant which actuated him in committing the crime with which he is charged, or, in case of an assault, on who was the probable aggressor. 39 Ark. 278; 37 Ark. 261; 71 Ark. 150; 82 Ark. 58; 68 Ark. 577. Bastardy, though a civil action for the benefit of the child and mother, is nevertheless quasi criminal. 29 Ark. 62; 45 Ark. 56. The only object in introducing this testimony was to discredit appellant and break down the effect of his testimony. It shed no light upon the motive for the crime for which appellant was being tried, nor as to the probable aggressor.

Hal L Norwood, Attorney General, and C. A. Cunningham, Assistant, for appellee.

Bell Wood's testimony was competent and proper to be considered in explanation of the conduct of the appellant toward the deceased, and was not so entirely disconnected with the case on trial as would render it incompetent as proving an independent crime. The verdict shows that the jury attached no weight to her testimony, and, in view of the testimony going to show that he was guilty of a higher grade of homicide than that of which he was convicted, its admission was not prejudicial. 77 Ark. 141; 70 Ark. 610; 76 Ark. 84; 72 Ark. 613; 73 Ark. 315.

OPINION

FRAUENTHAL, J.

The defendant, Mose Ware, was tried in the Calhoun Circuit Court upon an indictment charging him with the crime of murder in the first degree by killing one Craft Wood. He was convicted of voluntary manslaughter, and prosecutes this appeal to obtain a reversal of the judgment upon that conviction.

The evidence on the part of the State tended to prove that the defendant was a colored school teacher, and the deceased, Craft Wood, was a colored preacher, and they lived for a number of years about one mile from each other. Upon the morning of January 22, 1907, the deceased was riding upon a horse along the road by the home of the defendant, and there was shot and killed. On the same day and very shortly after the killing the defendant voluntarily surrendered to parties in the neighborhood, who took him to the sheriff of the county. To the sheriff the State proved that he made the statement that the deceased had been having wrongful relations with his wife, and that he had written deceased a note to leave, which deceased had refused to do, and that he had shot the deceased. But the sheriff did not claim that the defendant told him all the particulars of the killing. There was no one present at the time of the killing, save the defendant and deceased. The prosecution proved by the wife of the deceased that a short time before the killing the defendant had written to deceased a note asking him to leave and charging him with wrongful relations with defendant's wife; and by several witnesses the prosecution proved that the defendant made the statement that the trouble was all about his wife. There were some other slight circumstances indicating that a breach of the friendly relations between these parties had occurred on this account; and the sole and only motive for the killing which the evidence on the part of the State indicated was the alleged illegal relations of deceased with the wife of defendant. The defendant testified in his own behalf that when the deceased passed along the road at his house a controversy arose between them about the wrongful relations between deceased and defendant's wife and about deceased leaving; that in the controversy the deceased started to draw a pistol from a pocket of his overcoat and had pulled it partially out of the pocket and was attempting to draw it for the purpose of killing him, when the defendant shot the deceased with his shotgun.

Briefly, but sufficiently, the above presents the testimony showing the manner and the cause of the killing as claimed by the prosecution on the one hand and as urged by the defendant on the other. It is not considered necessary to further detail the evidence, because from this it can readily be determined whether the court committed an error in permitting the introduction of the testimony which we will now refer to, and whether such error was so prejudicial as to deprive the defendant of a fair and impartial trial.

In its examination in chief, and before the defendant had introduced any testimony, the State introduced as a witness Bell Wood, who testified that she was the daughter of the deceased; that a number of months after the killing the defendant gave her ten dollars for the purpose of sending her out of the State; that she was an unmarried woman and the mother of two illegitimate children, and that the defendant was the father of one of these bastard children; that the defendant had thus had illegal relations with her and debauched her. And in the same connection she stated that she had never told the deceased of any such wrongful relation with the defendant; that she had never told any one of it, and no one had ever spoken of it; that her father, the deceased, did not know it, and had never heard of it; and neither by her testimony or by any testimony was any circumstance shown by which it could be found that this alleged relation of the defendant with her was in any way the cause of or connected with this killing.

Let us then see if under the circumstances of this case there was any legal ground for the introduction of this testimony, or in what way it could throw light, if any, on the cause or manner of this killing. It is conceded that the deceased had never heard of this alleged relation, and had never in any way referred to it or in any way connected the defendant with his daughter; and that nothing had ever occurred that caused even a mention of the daughter between deceased and defendant. The sole and only motive for the killing which is advanced by the testimony of the State is the alleged illegal relation between deceased and the wife of defendant; and there is not a tittle of testimony which shows that the alleged relation of defendant with deceased's daughter was the cause or the motive of the killing. This testimony could not throw any light on the question as to who was probably the aggressor, for the reason that it is conceded that deceased knew nothing of the alleged relation, and that therefore no difficulty could have arisen between them from that cause. The sole effect, if not the purpose, of this testimony was to attack the character of the defendant. The question therefore presented is whether this testimony was admissible to prove the bad character of the defendant. The defendant occupies a two-fold relation in this case. He is the defendant; and he was a witness in his own behalf.

It is uniformly held that the prosecution cannot resort to the accused's bad character as a circumstance from which to infer his guilt. This doctrine is founded upon the wise policy of avoiding the unfair prejudice and unjust condemnation which such evidence might induce in the minds of the jury. If such testimony should be admitted, the defendant might be overwhelmed by prejudice, instead of being tried upon the evidence affirmatively showing his guilt of the specific offense with which he is charged. 1 Greenleaf on Evidence (8th Ed.), § 14 b, § 14 q; Wigmore on Evidence, § 57.

And so too, it is held that one offense cannot be proved by the evidence of the commission of another offense, unless the two are so connected as to form a part of one transaction. But, as wholly independent acts, the commission of one offense cannot be shown by evidence of the commission of another. And the introduction of such testimony is also inadmissible because it raises another and different issue which would call for the introduction of other testimony upon such issue, and thus would involve the true and...