Whittaker v. State

• Decision Date: 09 May 1927
• Docket Number: (No. 432.)
• Citation: 294 S.W. 397
• Parties: WHITTAKER v. STATE.
• Court: Arkansas Supreme Court

294 S.W. 397

WHITTAKER v. STATE.

(No. 432.)

Supreme Court of Arkansas.

May 9, 1927.

Rehearing Denied June 6, 1927.

Appeal from Circuit Court, Logan County; J. O. Kincannon, Judge.

Ray Whittaker was convicted of selling intoxicating liquor, and he appeals. Affirmed.

Jno. P. Roberts, of Ft. Smith, and Evans & Evans, of Booneville, for appellant.

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

WOOD, J.

Ray Whittaker was indicted and put on trial in the Logan circuit court for the crime of selling intoxicating liquor. Paul Bean, a witness for the state, among other questions, was asked the following:

"Q. State to the jury whether or not you and Claude Suttles bought some liquor from Ray Whittaker about the 25th of last September? A. I never; Claude came to me and asked me if I wanted some liquor, and I told him I didn't know. We started up the street, and he stopped and talked to some guys. When we got through he said, `Let's go up the street,' and when we had gone a little way he asked me for $1.25 and I gave it to him.

"Q. Where did you go? A. Out the highway.

"Q. How far was it from town? A. About a mile.

"Q. How much did you buy? A. A pint, I think.

"Q. Was it in a jar? A. Yes, sir.

"Q. What kind of a jar? A. Fruit jar.

"Q. What was it? A. Whisky."

Claude Suttles, a witness for the state, testified that he and Paul Bean, on September 25, 1926, in Logan county, Ark., bought some liquor, but witness could not say they got it from Ray Whittaker. Witness and Paul Bean met in front of Harp's Garage, and Paul stated that he would like to have a drink. Witness saw Ray Whittaker and went over and had a talk with him. Whittaker said he had some, and witness asked him what it was worth, and he said $2.50 per quart. "We paid him for it then." Later on they went out and got it, but witness did not see Ray Whittaker any more. Witness and Paul Bean contributed $1.25 each to the purchase of the liquor. Witness did not remember whether he or Paul turned the money over to Ray Whittaker. The money was given Ray before they got the liquor. Witness was asked who had the liquor and stated, "Paul;" that he had about a quart in a fruit jar. Witness and Paul were together when they gave Ray the money. Witness did not know which one gave him the money. Witness gave him $1.25. Paul did not give witness a $1.25 to give Ray, and witness did not know from whom Bean got the liquor. Witness did not get it from Ray Whittaker. Bean said something first about buying the liquor.

The cause was submitted to the jury under instructions to which the appellant made no objection. The jury returned a verdict finding the appellant guilty and assessing his punishment at imprisonment in the state penitentiary for a period of one year. Judgment of sentence was entered in accordance with the verdict, from which is this appeal.

1. The fifth ground of the motion for new trial is as follows:

"After the jury retired to consider of their verdict in this case, the state's witness Bean told Elmer Bryant that the testimony of said witness given in this trial was not true; that said witness did not go with the defendant and receive from defendant a quantity of whisky or other intoxicating liquor, as testified to by said witness on the trial; that this was a frame-up against the defendant; and that the defendant was not guilty of the charge made against him. Elmer Bryant stated this matter to counsel for defendant while the jury was still out considering of their verdict, and the counsel for defendant immediately reported this fact to the court and asked the court to reopen the case and permit the defendant to examine said witness Bean with reference to said matter and to introduce in evidence the statement of said witness Bean made to Elmer Bryant. This request was refused by the court, and defendant saved his exceptions. The court erred in refusing this request."

Learned counsel for the appellant insist that the above assignment of error is well taken and that the trial court erred in not granting the appellant a new trial for the reasons set forth in the above assignment.

The reopening of a case for the reexamination of a witness, or the taking of further testimony after the testimony on both sides has been concluded and the cause has been submitted to the jury, is a matter, under our statutes and decisions, within the sound discretion of the trial court, and this court will not reverse the ruling of the trial court unless it appears that the court, in making such ruling, has abused its discretion. Section 4190, C. & M. Digest; Teel v. State, 129 Ark. 180, 195 S. W. 32; Smith v. State, 162 Ark. 458, 258 S. W. 349. The record recites that the court, in refusing the request of the appellant to reopen the cause for the re-examination of the witness Bean, stated:

"That while the court had not talked to the witness Bean, the deputy sheriff waiting upon the court had reported to the court that the witness Bean had stated to the deputy sheriff that he (Bean) had not made the statements to Bryant that had been reported to the court."

While it would have been more appropriate for the trial judge to have interrogated the witness Bean to ascertain whether or not he denied that he had made the statement to Bryant as reported to the court, nevertheless the trial judge had the right to accept as true the statement of the deputy sheriff, who was the sworn officer of the court, to the effect that Bean had denied making the statement attributed to him by Bryant. The court did not abuse its discretion in accepting the statement communicated to him through the deputy sheriff as a denial of the statement of Bryant to the effect that Bean had stated that his testimony as a witness in the case was untrue. If the court had granted the appellant's request to reopen the case and to recall the witness Bean for re-examination, and Bean had adhered to his original statement, then nothing would have been gained, but, on the contrary, considerable time would have been lost in an endeavor to impeach witness Bean. If Bean had been recalled and had altered his testimony he would have been guilty of perjury. There is nothing in the record to show that after the taking of the testimony was closed and the case was finally submitted to the jury that witness Bean was still in attendance on the court and that he was therefore readily accessible and could have been called without any considerable delay. As already stated, the deputy sheriff had informed the court that witness Bean denied that he had made the statement to Bryant which Bryant had reported to the court. All these were reasonable and cogent considerations which doubtless influenced the trial court in refusing the request of the appellant to reopen the case for the re-examination of Bean. In so ruling, the court did not abuse its discretion. The assignment of error set up in appellant's fifth ground of the motion for a new trial is not well taken.

The appellant's sixth ground of the motion for a new trial was because of newly discovered evidence as set forth in the fifth ground. The ground of the motion was supported by the affidavit of Bryant et al. as to the facts set forth in the fifth ground of the motion for a new trial. The only effect of the newly discovered evidence as set forth in the affidavit of Bryant would be the impeachment of the testimony of the witness Bean. It is the general rule of practice in this court not to reverse the ruling of the trial court in refusing a new trial on the ground of newly discovered evidence where such evidence tends merely to impeach the credibility of witnesses. McMaster v. State, 163 Ark. 194, 260 S. W. 45; Lewis v. State, 169 Ark. 340, 275 S. W. 663; Hayes v. State, 169 Ark. 883, 277 S. W. 36; Snetzer v. State, 170 Ark. 175, 279 S. W. 9.

In the cases of Bussey v. State, 69 Ark. 545, 64 S. W. 268 and Myers v. State, 111 Ark. 399, 163 S. W. 1177, L. R. A. 1915C, 302, Ann. Cas. 1916C, 933, we held that a new trial should be had upon the ground of newly discovered evidence. The prosecuting witness in those cases, without whose testimony there...