101 Ark. 45 | Ark. | 1911
Nathan Rogers has appealed from the judgment of conviction for the crime of seduction. The prosecuting witness identified a number of letters and postal cards as having been written by the defendant. The letters and postal cards were not identified or proved to be the letters of the defendant by any other witness. They were read in evidence. With reference thereto, the defendant asked the court to instruct the jury as follows:
“9. The jury are instructed that while certain letters and postal cards have been read to you as evidence in this case, yet if you find that the only evidence that these were the letters and postal cards of the defendant is that of the prosecuting witness, Ollie Dugger, and she alone undertakes to identify the same, then said letters and postal cards can not be considered by you as testimony tending to corroborate the prosecuting witness, Ollie Dugger. ”
The court should have given, the instruction. It is well settled that when evidence is admitted for a particular purpose, it is the duty of the court to tell the jury to confine the application of the evidence to such purpose. So in the case before us the letters and postal cards were not identified or proved to be the letters and postal cards of the defendant by any other witness except the prosecuting witness herself. Hence they were a part of her evidence, and their probative force was due to her testimony. Carrens v. State, 77 Ark. 16.
The instruction, as asked, told the jury that if they should find that the only evidence that the letters and postal cards were written by the defendant was that of the prosecuting witness, and that she alone undertook to identifiy them, the jury could not consider them as testimony tending to corroborate the prosecutrix. Without any instruction from the court explaining that under these circumstances the letters and postal cards of the defendant had no probative force of their own, and could only speak as a part of the evidence of the prosecuting witness herself, their effect upon the jury may have had an illegitimate and undue weight in producing or affecting their verdict. This is conceded by the Attorney General, but he claims that the proposition was fully covered by other instructions given by the court. In the instructions referred to, the jury were told that there must be such corroborating evidence in the case, outside of the prosecuting witness, as tends to connect the witness with the crime charged. And again the court said:
“It (referring to the corroboration required) must be of such a nature and character, independent of the prosecuting witness, as to connect the defendant, or tend in some degree to connect him with the crime. * * * In determining that question, you will not consider the testimony of the prosecuting witness, together with the other circumstances. You take the circumstances independent of her testimony here, and find it from the legal evidence in the case.”
It will be observed, however, that in these instructions the court does not explain that the letters and postal cards, if identified and proved by the prosecutrix alone, could only be considered by the jury as a part of her testimony, and did not explain to the jury that the letters and postal cards had no probative force independent of her testimony. Therefore we are of the opinion that the court erred in refusing to give instruction No. 9 as asked by the defendant. Thomas v. State, 72 Ark. 582.
"We do not deem it necessary to set out the testimony in detail. It is sufficient that it was sufficient to warrant the verdict of the jury.
For the error indicated, the judgment will be reversed, and (he cause remanded for a new trial.
