24 Ark. 620 | Ark. | 1867
delivered the opinion of the court.
Simpson Brown — a colored person — was convicted, in the ' Pulaski circuit court, of murder in the first degree, and sentenced to be hanged. He moved for a new trial, which was overruled, aud the case now comes before the court for consideration.
It is insisted by the counsel for .the accused, that the court below erred in refusing to permit the witness, Washington Greer, who was an accomplice, to be sworn upon his voir dire. That the party against whom a witness is called, is entitled ,to have him put on his voir dire, in order to show his incompetency, is not denied. The correct practice, however, is to state the object and ground of the application, so that the court may determine as to the propriety of entering upon the investigation. The bill of exceptions merely states that it was “ asked that the witness be put on his vow dAre” without showing for what purpose, or why it was proposed so to examine him; and upon this state of case, the presumption must be, that the application was not warranted by law, and that the ruling of the court was correct. The fact that the witness was an accomplice, did not affect his competency; and if, as intimated in the argument, this was one of the grounds upon which an examination on the voir dare was sought, it was not a good one, and but serves to illustrate the rule above indicated. It is admitted that if the object was, also, to show in competency, arising from defects of understanding, or of religious principle, and the court, after having been asked to do so, upon that ground, had refused to examine the witness, in the mode prescribed by law, touching the matter affecting his competency, such ruling would have been erroneous. But the bill of exceptions presents no such case; on the contrary, it contains no facts upon which we can decide whether or not there was error.
The next point relied on relates to the admissibility of evidence offered by the accused. The bill of exceptions, after showing that the witness, Greer, was interrogated as to what he had said on different occasions in regard to matters connected with the offence charged in the indictment, states as follows: “ Defendant then asked witness, on his cross-examination, as to further statements and admissions he had made after he was arrested, and to whom he had made them for the purpose of laying a foundation for contradicting him by other witnesses — which was objected to, and the objection sustained by the court.” It is, undoubtedly, true that the credit of a witness may be impeached by proof that he has made statements out of court on the same subject, contrary to what he swears at the trial, provided the alleged statements are material to the issue; and provided, also, that the witness has undergone a previous cross-examition as to such statements, in which, if the statements are verbal, his attention was not only called to the particulars of the conversation, but, in which, he was also asked as .to the time, place and person involved in the supposed contradiction. But whether, in the case before us, “the statements and admissions” bf the witness were admissible as laying a foundation to contradict him, or for any other purpose, we have no means of ascertaining, since the bill of exceptions does not show, as it should, what those “statements and admissions’ were; and the presumption, therefore, is, that they were properly rejected. In Whitesides vs. Twitty, 8 Ired., 431, where the bill of exceptions stated that “ the declarations” of a party were offered in evidence, “ to show the consideration” of a note, it was held that no question was presented for the consideration of the court, as it did not appear what the declarations of the party were. BuffiN, O. J., in delivering the opinion of the court, lays down the law so clearly and concisely that we quote his remarks as applicable to this case. Ho says: “ From the nature of a bill of exceptions, as has been frequently declared by this court, it is incumbent on the party excepting, when the error alleged consists in rejecting evidence, to show distinctly in it, what the evidence was, in order that its relevancy may appear, and that it may be seen, that a prejudice has arisen to him from the rejection. In like manner, when the alleged error consists in admitting evidence, the exception must set forth the evidence actually given, as it is the only means whereby the court can ascertain whether or not the admission did, or might have done, the party a harm. For verdicts and judgments are presumed to be right, and according to law and j ustice, until the contrary be shown; as the bill of exceptions is required to state all the facts necessary to show the error clearly, since the party excepting is presumed to state the case as strongly against the other party and for himself, as he can, consistently with the truth.” In Styles vs. Gray, 10 Texas 503, the bill of exceptions showed “ that the defendant offered evidence to attack the correctness of the surveyor’s record, and to show traud in the dates of the location and survey of Ann Gray, which was ruled out by the court,” and it was held that the bill of exceptions was too vague and uncertain, as to the character of the evidence by which the defendant sought to establish the fraud, to enable the court to say whether or not there was error in ruling it out. To the same effect are the cases of Carnal vs. The People, 1 Parker's Crim. Rep., 272; Fowler vs. Lee, 4 Munf., 373; and Gatewood vs. Burrus, 3 Call's Rep., 194.
The bill of exceptions also states that the counsel for the accused offered to examine the same witness “ as to the manner of his arrest, and the places in which, and the persons by whom he was held in custody after his arrest” — which the court refused to permit. "What the facts connected with the arrest and imprisonment of the witness were, we are not informed; and consequently, the objections we have just discussed, applies to the bill of exceptions in this particular.
• There was no error in excluding the testimony of the witness, Byland. lie was introduced to prove that the witness, Greer, had made statements at the jail, contrary to what he had sworn on the trial, without any foundation for the introduction of such testimony having been first laid, by an appropriate cross-examination of the witness sought to be impeached. Nor was there error in refusing to permit Adolph Flanagin to testify in behalf of the accused. He was a co-defendant in the indictment which was still pending against him, and for that reason was incompetent, according to the decision of this court in Moss vs. The State, 17 Ark., 327.
Without entering into a critical discussion of the charge given the jury by the court below, it is sufficient to remark, that, in view of the evidence adduced at the trial, and especially when taken in connection with the instructions given at the instance of the accused, it had no tendency, we think, in misleading the jury-
The remaining ground relied on for a reversal, is well taken. Upon examination, we find that the record does not show that the accused was personally present in court, at the time the venire facias for the trial of this case was ordered; and it 'has been repeatedly decided by this court that, in prosecutions for felony, the defendant must be personally present at each and every time when any step is taken by the court in his cause, and that the record must affirmatively show the fact. (Sweeden vs. The State, 19 Ark., 209; Sneed vs. The State, 5 Ark., 431; Cole vs. The State, 5 Eng., 518.) For this error the judgment must be reversed, and the cause remanded with instructions to the court below to grant the accused a new trial.
