136 Ark. 473 | Ark. | 1918
(on rehearing). On reconsideration of this case we have reached the conclusion that it was wrong to hold that no prejudicial error was committed in permitting the State to introduce testimony tending to establish the general reputation of the prosecuting witness for truth and morality. If it was error to admit the testimony, it ought not to be said that such error is not prejudicial and does not call for a reversal of the judgment, for that would be to disregard the statute itself, which is mandatory in its terms.
In the original opinion we followed the case of Patrick v. State, but that case was different in that the proof introduced was for the purpose of proving the chastity of the prosecuting witness, and we held that there was no prejudice, because under the law chastity would be presumed in the absence of proof to the contrary. There is, it is true, a presumption of good character on the part of a witness in the absence of proof to the contrary, but the difference in the two cases is that in one there is no statute declaring the testimony inadmissible and in the other there is such a statute, and for the courts to disregard it by holding that, notwithstanding its plain violation, no effect will be given it because it was nonprejudicial would be to nullify the statute.
It seems to us now, on further reflection, that to fortify the credibility of a witness by proof of general reputation, where no attack has been made, is calculated to give undue weight to it, which the statute itself was intended to forbid. State v. Owens, 109 Ia. 1, 79 N. W. 462; Shields v. Conway, 133 Ky. 35, 117 S. W. 340.
The case of Patrick v. State was decided correctly, but anything in the opinion which might appear to hold that the same rule would be applicable to a case of proof of general reputation is now disapproved, and we hold that where testimony is admitted contrary to the terms of the statute, it necessarily calls for a reversal of the judgment.
The Attorney General defends the ruling of the trial court in admitting the State’s testimony in support of the good character of the prosecuting witness for truth and morality on the ground that appellant impeached her credibility on cross-examination and by the introduction of other testimony. Counsel for appellant asked the prosecuting witness if she had not visited the West End hotel, a place which was shown by other testimony to be a house of ill repute, with a man named Wilmot, and spent the night with him. The witness denied that she had done so, but admitted that she went to the West End hotel on another occasion with a party of young people and danced for a short while. She explained that she did not know that the place had a bad reputation. Another witness introduced by appellant testified that the prosecuting witness admitted that she took several drinks of whiskey with appellant and Wilson on the evening the assault was committed and while taking the ride. Appellant and Wilson each testified that the prosecuting witness drank whiskey with them while they were out on the ride and that she admitted to them instances of immoral conduct on her part.
Now, it was .competent, of course, to impeach the credibility of the prosecuting witness on cross-examination by interrogating her concerning particular instances of immorality on her part, but appellant was bound by her answers on that subject and could not introduce witnesses to contradict her. McAlister v. State, 99 Ark. 604.
The testimony as to the admissions of the witness concerning her immoral conduct on the occasion of the alleged assault and also the testimony of other witnesses concerning that misconduct was competent to explain the relations of the parties at the time of the assault, hut it was not competent for appellant to introduce testimony of specific instances of immoral conduct for the purpose of impeaching the character of the witness or her general reputation for truth and morality, and such testimony could not be made the basis for the introduction of testimony supporting her general reputation.
The statute,- it will be readily seen, observes the distinction between general reputation and credibility of a witness, and under it an attack by proof of the latter only will form the basis for the introduction of proof of good character. The credibility of a witness may be im-, peached by proof on cross-examination of specific instances of immorality, or by proof of contradictory statements, but that does not justify the introduction of proof of good character in support of the witness, for the statute in express terms declares that such proof is inadmissible until “general reputation has been impeached.” The following authorities on the subject may be read with interest: Jones on Evidence, § i865; State v. Owens, supra; Tedens v. Schumers, 112 Ill. 263; Shields v. Conway, supra; People v. Gay, 7 N. Y. 378; Harrington v. Lincoln, 70 Mass. 563; Atwood v. Dearborn, 83 Mass. 483; Gertz v. Fitchburg Railroad Company, 137 Mass. 77.
In some of the States statutes similar to our own have been enacted, but none of the States where the above cases were decided have such statutes, as far as we can ascertain, except the State of Kentucky from whom our statute was borrowed in precise language. But all of the authorities are unanimous in holding that only an attack on the credibility of a witness by some form of proof of general reputation will justify the support of the witness by proof of good behavior. In both Kentucky and Massachusetts it was held that proof of conviction of a witness of felony justified the introduction of proof of good -character in support of the witness, but this is on the ground that the taint of the conviction tends to impeach the general reputation of the witness for truth and morality.
The trial court erred in admitting the proof of good character of the prosecuting witness, and that error was prejudicial, or may have been so. The rehearing is, therefore, granted, and for the error indicated the judgment is reversed and the cause remanded for a new trial.
