72 Ark. 461 | Ark. | 1904
(after stating the facts). This is an appeal from a judgment convicting the defendant of the crime of an assault with intent to kill and ordering him confined in the penitentiary át hard labor for the term of six years. If the defendant is guilty of the crime of which he has been convicted, the punishment is none too heavy, for it was an attempt to take the life of an innocent man, and the circumstances conclusively show that the party who did it was actuated by cool and deliberate malice. But though Rieblin, the prosecuting witness, testified on the trial positively to the fact that the defendant was one of the parties who committed the assault, yet there was evidence in the case that tended to show that soon after the crime was committed he was uncertain as to the identity of the person committing the assault, and on one occasion he charged another man with having committed it, though he said on the stand that this was done only in jest. He testified that A1 Burks committed the assault, and that another man was with him at the time. Both of them, he said, had pistols in their hands, and that he saw them both distinctly. But, though on the stand he was positive that A1 Burks was one of his assailants, he did not seem to know who the other party was, and at different times laid the crime to different parties. At one time he said that it was a brother of Burks, and then that it was a brother-in-law of Burks, and at last he seems to have been positive only as to the defendant.
We have not set out the testimony in full, but no one can read it and not see that there is room for doubt as to the identity of the parties that committed the crime, though on the whole record the evidence is sufficient to sustain the verdict, and we should feel no inclination to disturb the finding of the jury if the defendant had been given a fair and impartial trial.
The charge of the court to the jury was, we think, in accordance with the law, and -his rulings in the trial were generally correct, but in the matter of the cross-examination of some of the witnesses of the defendant and in the argument of the prosecuting attorney to the jury we are of the opinion that this officer was allowed to go beyond the bounds of the legitimate cross-examination and argument, and it seems to us that he thereby probably caused some prejudice to the rights of the defendant.
There was nothing prejudicial in asking Mrs. Burks, the mother of defendant, where she found her daughter when she visited her in Hot Springs on the day the crime was committed, though we do not see that the place where she met her daughter was very material. But when she had been asked that question, and had answered it, we do not think it was proper for the prosecuting attorney to persist in repeating the question several times, and to intimate that the daughter was the keeper of a house of ill fame. The daughter was not a witness, and, even if she had been, it would not have been proper to have impeached her character in that way by the evidence of particular acts. The fact, if proved, that the sister was the keeper of a brothel was not material or proper to be considered by the jury in this case against her brother. For that reason these questions may have worked some prejudice in the minds of the jury as to the defendant, her brother. It is true that the witness answered such questions in the negative, but the persistency with which they were repeated by the attorney for the state may have led the jury to believe that he knew the witness was concealing the truth, and repeated the question on that account, and may have led them to believe the very fact that the witness denied. As the matter was entirely immaterial and outside of the case, we think the court should have sustained the objection made by the defendant.
Again, in the cross-examination of J. W. Burks, the father of defendant, the prosecuting attorney, after having questioned him concerning the finding of certain cartridges by one Sherrill who had testified to that fact, then asked him if he did not know that the pretended finding of those cartridges was a fabrication on the part of Sherrill, and that he in fact had found none. To this question the witness replied that he knew nothing about it except what Sherrill had told him; that Sherrill had said that he found the cartridges, and that was all witness knew about it. The prosecuting attorney then said: “Now, Mr. Burks, what did you give Sherrill to testify in this case for you ?” Counsel for defendant interposed a vigorous objection to this question, and asked the court to tell the jury to disregard it. If the prosecuting attorney had reason to believe that Sherrill had been bribed to testify falsely by Burks, he had the right to question the witness in reference thereto, but the question propounded here goes further. It does not ask whether there had been any reward offered the witness for his testimony. It assumes that he, Sherrill, had been bribed, and asks Burks to tell the amount he had paid him for his testimony. Now, the prosecuting attorne}1', it is evident, did not expect that the witness would admit that he had bribed Sherrill to testify falsely, and the question was propounded, it seems to us, not so much to elicit information, as to get before the jury the opinion of the prosecuting attorney that the witness Sherrill had been bribed to testify falsely for the defendant, and to prejudice him and the defendant in the minds of the jury. This method of cross-examination, we think, was highly improper, and we think the learned judge erred in refusing to sustain the objection to it made by defendant.
In his argument to the jury the prosecuting attorney, in commenting on the testimony of Sherrill, spoke of him as a “contraband fishtrap man,” and stated to the jury that the fact that he had been introduced as a witness to testify to the finding of cartridges was conclusive evidence of the defendant’s guilt. There was no evidence showing or tending to show that the witness was engaged in any unlawful business, or that his character was bad, and the fact that he had been introduced as a witness was no evidence of defendant’s guilt, much less was it conclusive evidence of that fact. This line of argument was unfair and improper, and should have been stopped by the court when counsel for defendant interposed an objection thereto. But the court overruled the objection, and told the prosecuting attorney to proceed, and we think that in this ruling the court committed error. Holder v. State, 58 Ark. 473; 2 Enc. Plead. & Prac. 738; Hall v. United States, 150 U. S. 76.
Now, it does not always follow, because an attorney makes an improper argument, and the court refuses to interfere, that a judgment in favor of the party represented by the attorney will be set aside on appeal and a new trial granted. It depends on whether the court is of opinion that the improper argument and the refusal of the court to interfere prejudiced the rights of the opposite party. If the court is satisfied from the evidence that, notwithstanding the improper argument, the verdict and judgment are right, then it follows that no prejudice resulted, and no ground for a reversal on account of such argument and ruling of the court is shown. St. Louis, I. M. & So. Ry. Co. v. Boback, 71 Ark. 427, 433. But where the evidence is conflicting, and such as not to satisfy the court that no prejudice resulted from the improper argument and ruling of the trial court thereon, this, court may feel compelled, in the interest of justice, to reverse the judgment and order a new trial, that the defendant may have a fair and impartial trial. A full consideration of the matter has convinced us that such a course should be adopted in this case. The judgment is therefore reversed, and the cause remanded for a new trial.