Younger v. State
| Decision Date | 16 October 1911 |
| Parties | YOUNGER v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Pope Circuit Court; Hugh Basham, Judge; reversed.
Judgment reversed and cause remanded.
Brooks Hays & Martin, J. A. Gillette and J. T. Bullock, for appellant.
1. That it was error, prejudicial to the defendant, to admit testimony showing that he had been arrested in Oklahoma on a warrant for horse stealing and had resisted being brought back to this State on that charge, is elementary.
2. It was also error, for which the case should be reversed, to allow a remark of the prosecuting attorney at the conclusion of the examination of a witness whose testimony was favorable to the defendant, as follows: "I do not believe a word of it," to stand with the mild statement by the court when objection was raised, that "that remark will be withdrawn." 71 Ark. 415; 70 Ark. 305; 77 Ark. 19; 72 Ark. 427; Id. 461; Id. 139; 74 Ark. 210; 65 Ark. 389; 76 Ark. 366.
3. It was clearly prejudicial to permit the State to ask the defendant on cross examination if he had not been dodging officers for violations for the past two or three years, if he had not been convicted and served a term in the penitentiary, if he had not been convicted of petit larceny etc., and to permit the State to put in issue the general reputation of the defendant, and to introduce witnesses to prove that his reputation was bad. In the light of this testimony, it was reversible error for the court to refuse to charge the jury that the bad reputation of the defendant could not be considered for any purpose except as to his credibility as a witness, and that they could not convict of this offense on proof that he had committed some other crime. 69 Ark. 648; 16 Ark. 308; 70 Ark. 610; 74 Ark. 489; 88 Ark. 237; 37 Ark. 264; 39 Ark. 278; 73 Ark. 262; 68 Ark. 577; 91 Ark. 559.
Hal L. Norwood, Attorney General, and William H. Rector, Assistant, for appellee.
1. The error, if any, in the improper remark of the prosecuting attorney when the witness was leaving the witness stand was cured by the court's admonition: "That remark will be withdrawn." This court has said: "It is safe to credit the jury with average intelligence." 66 Ark. 16. See also 76 Ark. 39; 88 Ark. 62; 94 Ark. 514; Id. 548; 71 Ark. 62; 74 Ark. 256; 95 Ark. 321; 65 Ark. 475; 67 Ark. 365; 93 Ark. 156; 91 Ark. 576.
2. If there was error in allowing the State to prove that appellant was arrested in Oklahoma upon another charge, it was waived by appellant because on direct examination he admitted the facts which the State had already proved by other witnesses.
3. Under the instructions given, which were fair and accurate, the jury could not have convicted appellant unless the evidence had shown beyond a reasonable doubt that he was guilty of this crime. The court was justified in refusing to give the instruction requested by appellant. If he had been an ordinary witness, the jury would not have been entitled to his testimony, 67 Ark. 278, and any instruction which the court might have refused to give touching his credibility could not be complained of. The same rule ought to apply where the witness is the defendant himself, although because of that fact (49 Ark. 176,) his testimony may go to the jury. His conviction, admitted by himself, may be used to affect his credibility. 74 Ark. 397; 44 Ark. 122; 58 Ark. 473; Kirby's Dig. § 3138, as amended by act 52, Acts 1905.
The appellant was convicted of the crime of an assault with intent to rape. There was testimony on behalf of the State sufficient to sustain the verdict. The testimony of appellant tended to show that he was not guilty.
Over the objection of appellant, the State was allowed to prove that appellant was arrested in Oklahoma upon a charge of grand larceny, and that he refused to return to Arkansas to answer this charge without a requisition. The prosecuting attorney was permitted, over appellant's objection, to ask appellant on cross examination:
The State, over the objection of appellant, was permitted to show that appellant's general reputation for truth and morality was bad.
The court refused the following prayer of appellant for instruction: "The bad reputation of the defendant shall not be considered by you for any purpose except as to his credibility as a witness; you can not convict of assault with intent to rape on proof that he is or has been guilty of some other offense." Exceptions were duly saved to these rulings, and they are among the grounds in the motion for new trial.
In Ware v. State, 91 Ark. 555, 121 S.W. 927 we said: ...
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