Willyard v. State

• Decision Date: 16 January 1904
• Citation: Willyard v. State, 78 S.W. 765, 72 Ark. 138 (Ark. 1904)
• Parties: WILLYARD v. STATE
• Court: Arkansas Supreme Court

78 S.W. 765

72 Ark. 138

WILLYARD v. STATE

Supreme Court of Arkansas

January 16, 1904

Error to Sebastian Circuit Court STYLES T. ROWE, Judge.

Reversed.

Reversed and remanded.

Robert A. Rowe, for appellant.

It was error for the prosecuting attorney to refer to what occurred in a former trial. 62 Ark. 126; 58 Ark. 473. As to error in other remarks of prosecuting attorney, see: 75 S.W. 584; 66 Ark. 16.

George W. Murphy, Attorney General, for appellee.

OPINION

BATTLE, J.

G. F Willyard was accused before a justice of the peace of an assault and battery, committed by unlawfully whipping his daughter, Dessie Willyard, a girl about thirteen years old. He was convicted, and appealed to the circuit court. He was tried and convicted in that court, and appealed to this court. In a trial before a jury five witnesses were introduced, and testified in behalf of each party. The testimony was conflicting. The verdict of the jury depended on the witnesses they believed.

In his argument before the jury the prosecuting attorney stated that the defendant had been tried before a justice of the peace where he resided, and had been convicted, "and they could see from that what the jury thought of the case." The defendant objected to the statement, and the court sustained his objection, and the prosecuting attorney thereafter repeated it. There was no evidence adduced to sustain it. In the course of the same argument he told the jury that the defendant, in the trial before the justice of the peace, "winked and nodded" at his little girl Dessie, while she was on the witness stand testifying. There was no evidence to sustain this assertion. The defendant objected to it, and the court sustained his objection.

The remarks of the prosecuting attorney to the effect that the defendant had been tried for the same offense for which he was then on trial before a jury of the neighborhood in which he resided, in a court of a justice of the peace, were improper and prejudicial. His repetition of them after the court had sustained defendant's objections was calculated to impress them upon the minds of the jury, and cause such jury to attach more importance to them than they otherwise would, and in the conflict of the evidence was calculated to cause the jury to decide against the defendant they believing that a jury composed of his neighbors, knowing him and the witnesses, were better qualified than themselves to...