Whittaker v. State

• Decision Date: 27 September 1926
• Docket Number: 141
• Citation: 286 S.W. 937,171 Ark. 762
• Parties: WHITTAKER v. STATE
• Court: Arkansas Supreme Court

286 S.W. 937

171 Ark. 762

WHITTAKER v. STATE

No. 141

Supreme Court of Arkansas

September 27, 1926

Appeal from Monroe Circuit Court; George W. Clark, Judge; affirmed.

Judgment affirmed.

Bogle & Sharp, for appellant.

H. W Applegate, Attorney General, and John L. Carter, Assistant for appellee.

OPINION

WOOD, J.

Appellant was convicted in the Monroe Circuit Court of the crime of rape, and sentenced by the judgment of the court to imprisonment in the State Penitentiary for life. The judgment was based upon the verdict returned by the jury finding appellant guilty and fixing the term of imprisonment in the State Penitentiary for life.

The alleged victim of appellant 'was one Ruth Kennison, who testified, giving the circumstances of the alleged assault in detail, which we deem it unnecessary to set forth, inasmuch as we are convinced that the testimony of the prosecutrix and other witnesses for the State was amply sufficient to sustain the verdict. After detailing the facts and circumstances of the assault, the prosecutrix concludes her testimony by saying that he (the appellant) "grabbed me and jerked me across the road, slammed me down on the ground, and said, 'Lay down here, or I will kill you.' He held my arms, forced my legs open, wrestled with me until he penetrated me, actually raped me as brutally and harshly as he could." Appellant, in his testimony, denied positively that he assaulted the woman, and there was testimony of another witness in his behalf tending to corroborate his testimony. But the jury were the sole judges of the evidence and of the credibility of the witnesses, and it appears from their verdict that they believed the testimony of the prosecutrix rather than that of the appellant and his witness.

1. The court, over the objection of appellant, permitted the attorneys for the State to ask the appellant, on cross-examination, the following questions: "Q. What did you do to that Raymond girl about four or five years ago? A. I didn't do anything to the Raymond girl. Q. Didn't you rape her? A. No sir. Q. Didn't hurt her? A. No sir. Q. What about Tennessee Sawyer, what did you do to her?"

The appellant objected to the questions, and the attorney for the prosecution stated: "I want to show his immoral tendency. Court: Do you mean to ask by that question if he assaulted this party named with the intention of having intercourse with her? The attorney for the State: The Ramsey girl, yes sir. Q. What did you do to Tennessee Sawyer? A. She got shot accidentally. Q. Who got shot? A. Tennessee. You shot her, didn't you? A. Yes sir."

Here the attorney for the appellant again objected to the questions and answers, and asked the court to exclude the same from the jury. The court stated: "Any evidence establishing or connecting him with immoral crimes of a serious nature would shed light on his reputation."

The attorney for the prosecution stated that the purpose of the questions was to test his credibility.

The court refused to exclude the testimony, to which ruling the appellant duly excepted.

The prosecuting attorney further interrogated the appellant, on cross-examination, as follows: "Q. You know the Ramsey girl that lived over on the Mr. Bateman place two or three years ago? A. No sir. Q. Do you know a family named Ramsey? I will ask you if you didn't rape a girl there, and you and your daddy paid them some money and kept it down? A. No sir."

The court further permitted the prosecuting attorney to ask the appellant, on cross-examination, the following questions: "Q. Didn't you shoot this girl? A. Yes sir. Q. Didn't you shoot another negro last fall? A. Yes sir."

The court stated that the only purpose of the testimony was to aid the jury in determining the degree of credit to attach to appellant's testimony, and further stated that this testimony was not evidence of his guilt of this particular charge.

There was no error in the rulings of the court. The testimony, as shown by the statement of the court in making its rulings, was admitted for the purpose of testing the credibility of the witness. The questions propounded to the appellant, and his answers thereto, were proper when limited, as the court ruled, to the one purpose of testing the credibility of the appellant as a witness.

In the leading case of Hollingsworth v. State, 53 Ark. 387, 14 S.W. 41, this court, through Mr. Justice HEMINGWAY, approved the general doctrine announced by the Supreme Court of Michigan in Wilbur v. Flood, as follows: "It has always been held that, within reasonable limits, a witness may, on cross-examination, be very thoroughly sifted upon his character and antecedents. The court has a discretion as to how far propriety will allow this to be done in a given case, and will or should prevent any needless or wanton abuse of the power. But, within this discretion, we think a witness may be asked concerning all antecedents which are really significant, and which will explain his credibility."

The court also cited and quoted with approval from Real v. People, 42 N.Y. 270, as follows: "A witness, upon cross-examination, may be asked whether he has been in jail, the penitentiary or State prison, or any other place that would tend to impair his credibility, and how much of his life he has passed in such places."

Our own court has steadily adhered to the rule announced in Hollingsworth v. State, supra, and the following cases may be examined as authority on this subject: McAlister v. State, 99 Ark. 604, 139 S.W. 684; Turner v. State, 128 Ark. 565, 195 S.W. 5; Webb v. State, 138 Ark. 465 at 465-469, 212 S.W. 567; Turner v. State, 155 Ark. 443-448, 244 S.W. 727; 195 S.W. 5; Tong v. State, 169 Ark. 708 at 708-712, 276 S.W. 1004; Mays v. State, 169 Ark. 332-334, 275 S.W. 659; Ogburn v. State, 168 Ark. 396 at 396-400, 270 S.W. 945; Wray v. State, 167 Ark. 54 at 54-57, 266 S.W. 939; Lytle v. State, 163 Ark. 129 at 129-131, 259 S.W. 394; Middleton v. State, 162 Ark. 530 at 530-539, 258 S.W. 995; Sweeney v. State, 161 Ark. 278 at 278-286, 256 S.W. 73; Bank of Hatfield v. Chatham, 160 Ark. 530, 531-541, 255 S.W. 31; Turner v. State, 153 Ark. 40-46, 239 S.W. 373; Shinn v. State, 150 Ark. 215 at 215-220, 234 S.W. 636; Pearrow v. State, 146 Ark. 201 at 201-206, 225 S.W. 308; Paxton v. State, 114 Ark. 393 at 393-396, 170 S.W. 80.

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