| Ark. | Apr 21, 1894
The appellant, having been indicted in the Hittle River circuit court for the crime of murdering one Drennan Hogan, was tried, on a change of venue, in the Sevier circuit court, at its January term, 1894, and convicted of murder in the first degree, and sentence and judgment were pronounced accordingly. Erom the judgment the appellant appeals to this court, and asks a reversal of the same.
The appellant was the father-in-law of the deceased, and they lived near each other. There was evidence going to show the existence of animosity in the heart of appellant towards the deceased; that, about 4 p. m. on the 15th day of September, 1893, the deceased left his home to visit a neighbor by the name of Howard, his route leading by the residence of appellant; that he was seen to pass there; that, soon after, the report of a gun was heard by persons at and near appellant’s residence and other places in the neighborhood, in the direction of the locality where the body of the deceased was subsequently found; that deceased had left home riding a mule, and that the mule was discovered near the spot where the body of deceased was found. The evidence was entirely circumstantial.
The appellant is a colored man, and so was the deceased. The neighborhood was one of almost exclusively colored people, there being but about six white men within a circle of a radius of six miles. Many, and indeed nearly all, of the witnesses called to testify as to the occurrence were colored people. There were efforts fro and con at impeachment of witnesses, and the legal propositions growing out of the case mostly spring from this circumstance.
In the first place, we have been unable to find, anywhere, any evidence of the means by which the deceased came to his death. From the very nature of things the connection of the appellant with the killing must have been that he was .the slayer by shooting the deceased with a gun, and the charge was so laid, and all the evidence was given that direction. Whether the deceased was killed by being shot, or fell from his mule, died suddenly from natural causes, or came to his death in any other manner, there is not the least intimation in the testimony, unless it be in the statement of witnesses here and there that he was “killed” on a certain day, or “ when he was killed ” and the like. Under the circumstances we cannot comment upon the evidence in other respects, but as to this we think the omission or defect is fatal.
The defendant having testified in behalf of himself, a witness testifying subsequently in rebuttal on behalf of the State was asked to detail what defendant had sworn before the coroner’s jury of inquest. To this defendant objected, on the ground that the coroner’s written statement of the testimony was the best evidence of what the defendant had testified, and that the same should have been produced. This objection was overruled, however, and the witness proceeded to state what defendant had said, as to a particular event, when testifying before the coroner’s jury. Witness’s statement does not materially differ from appellant’s statement on the trial, and for that reason the point seems to have been abandoned, and would not be recalled here, but for the reason that the question might arise hereafter in the case.. It is proper that a witness, whose testimony is attempted to be impeached on the ground of prior contradictory statements, should be treated fairly by having his attention called to the particular time, place, circumstance and surroundings of the prior statement. So, also, when his former statement has been reduced to writing, as is required by law in cases of inquest, the better rule, if not the essential rule, is to produce the writing when it is possible to do so. Fairness, propriety and correctness all support this view.
Another question arises on the objection of the defendant to the manner in which questions are pounded to and answered by witnesses called to impeach another on the ground of bad reputation for truth and morality, and also to sustain the reputation of a witness thus sought to be impeached. The plain, simple formula in the first instance is essential. The impeaching witness should be interrogated as to his knowledge of the general character and reputation?among his neighbors, for truth and morality, of the witness sought to be impeached, and from that knowledge, if sufficient to •support an opinion, whether or not he would believe the person on oath. Where a witness is introduced to sustain the character of the witness sought to be impeached, . . . similar interrogatories should be propounded to him. Something of greater latitude, however, is allowable in the answer in this case than in the other, but it is difficult to lay down any definite rule on the subject. The following quotation from Rice on Criminal Evidence, page 610, expresses our view of the subject, to-wit: “A very sensible and commendable instance of the relaxation of the old and strict rule in the reception of negative evidence of good character—as for example, the testimony of a witness who swears that he has been acquainted with the accused (witness) for a considerable time, under such circumstances that he would be more or less likely to, hear what was said about him, and he has never heard any remark about his character—the fact that a person’s character is not talked about at all being, on grounds of common experience, excellent evidence that he gives no occasion for censure, or, in other words, that his character is good.”
Evidence of character should be general, and therefore questions as to knowledge of character should be general, so that the answers should not consist of recitals of particular instances, or be confined to estimates of particular individuals or classes.
For the errors named, the judgment of the Sevier circuit court is reversed, and the case is remanded for further proceedings not inconsistent herewith.