Paxton v. State, 114 Ark. 393

Paxton v. State

114 Ark. 393 | Ark. | 1914

Smith, J.

(after stating the facts). (1) It is settled that the court may, even in a criminal case where imprisonment is not a part of the punishment, direct a jury to return a verdict of guilty, and the action of trial courts in so doing has been several times approved by this court. But this should be done only when the evidence is reasonable and consistent, and the witnesses stand unimpeached on account of either bias or prejudice and nothing is shown in the evidence which would raise any question as to their veracity, and the evidence offered is of such a nature that it would be arbitrary and capricious for a jury to refuse to believe the witnesses, and the proof is such that reasonable minds could draw only one conclusion from the evidence, that conclusion being the guilt of the party.

In the case of St. Louis Southwestern Ry. Co. v. Trotter, 89 Ark. 273, an instruction was approved in which .a jury was told “that you are not bound to accept as conclusive the statement of the witnesses that the engine was in good order and carefully operated, although there may be no direct evidence to contradict them, but you will consider all the circurpstances and evidence bearing upon the condition of the -engine and mode of operating it, and the circumstances under which the fire took place, in arriving at your verdict. ’ ’

(2) It is the province of the judge to pass upon any question involving the competency of the witness and the admissibility of the evidence offered; but it is the province of the jury to pass upon the weight of the evidence and upon the credibility of the witness; and the trial judge may direct a verdict only where the evidence raises no material question of fact for the jury’s determination. In other words, where the evidence raises questions which at last are questions of law.

(3) The right ito impeach ia witness by cross-examination is universally recognized. The leading case in our reports on that subject is the case of Hollingworth v. State, reported in 53 Ark. 387, where, in an able discussion of this question, Judge Hemingway, speaking for the court, among other things, said:

‘ ‘ * * * It is always competent to interrogate a witness on croBS-examiniation touching -his present or recent residence, occupation and associations; and if, in answer to such questions, the witness discloses that he has no residence or lawful occupation, but drifts about in idleness from place to place, associating with the low and vicious, these circumstances are proper for the jury to consider in determining his credibility. That such a life tends to discredit the testimony of the witness, no one can deny; when di.sclo,sed on crosis-examination, it is exclusively for the jury to determine, whether any truth can come from such source, and if so, how much.”

In the case of Kansas City So. Ry. Co. v. Belknap, 80 Ark. 587, it was held not error to permit a witness for a railway company to be asked if transportation had been furnished him, and it was there said:

“The probative force of such evidence maybe and is very weak, but the weight of it is for the jury. * * * It is proper always to. show the bias or prejudice of a witness toward a party litigant as affecting the credibility of the witness. This is not collateral matter. Crumpton v. State, 52 Ark. 273.”

In the case of Skillern v. Baker, 82 Ark. 86, where the action of the trial judge in directing a verdict was reversed, the court said: “But we are of the opinion that under the evidence this direction was improper. It may be said to be the general rule that where an unimpeached witness testifies distinctly and positively to a fact and is not contradicted, and there is no circumstance shown from which an inference against the fact testified to by the witness can be drawn, the fact may be taken as established, and a verdict directed based as on such evidence. But this rule is subject to many exceptions, and where the witness is interested in the result of the suit, or facts are shown that might bias his testimony or from which an inference may be drawn unfavorable to his testimony or against the fact testified to by him, then the case should go to the jury. ’ ’

The Case of Merchants’ Fire Ins. Co. v. McAdams, 88 Art. 550, is to the same effect.

In the article on the subject of Trials in 38 Cyc. 1567, the duty of the court in passing upon a request to direct a verdict was defined .as follows:

“Doubts should in all cases be resolved in favor of the submission -of the case to the jury. It is only when the court can find no evidence which in its deliberate and ultimate judgment is entitled to be weighed that the jury should be instructed in terms that there is no evidence to support the burden of proof which rests upon the party. A verdict should not be directed except in cases' where the evidence is so conclusive that reasonable minds could not differ as to the result to be reached. A verdict should not be directed unless the proof is free from substantial conflict, although the evidence preponderates in favor of one of the parties, or although the conflict arises only by indirection. A verdict should not be directed when it must be based on some fact which must be inferred from the evidence, and which is not a legal presumption therefrom; where the evidence would warrant a finding either way; where, although there is no conflict in the testimony of the witnesses, or although the facts be conceded, the evidence reasonably tends to contradictory conclusions. Nor should a verdict be directed where a party is the sole witness in his own behalf, and 'his evidence, although uncontroverted, is confusing, or on the uncontroverted testimony of an interested witness, or of a witness shown to be hostile to the opposite party * * *

Numerous cases are there cited in support of the text quoted.

It may he said that this evidence was undenied by the defendant, who was present and failed to testify. But under the statutes of this State a defendant may testify or not, as he pleases, and the statute expressly provides that Ms failure to testify shall not create any presumption against him. Section 3088, Kirby’s Digest.

(4) Whatever may be said of the necessity of resorting to the means here employed of securing evidence in cases of this character it is nevertheless true that the State’s witnesses were employed as spies and had that interest in securing convictions. At any rate, we think the proof yas sufficient to require the submission of their credibility to the jury, and especially do we tMnk tMs is so when taken in connection with the proof in regard to their associations and conduct. However convinced the trial judge may have been of the truthfulness of the evidence of these witnesses, the fact remains that an attempt wias made, in the methods provided by the law, to establish the fact that these witnesses were not credible and the jury should have been permitted to pass upon that question.

For the error committed in directing a verdict the judgment will be reversed and the cause remanded for a new trial.

Kirby, J., dissents.