87 Ark. 17 | Ark. | 1908
(after stating the facts). Where an appeal on behalf of the State is desired, the statute provides that the prosecuting attorney shall pray the appeal, and the clerk shall make out a transcript of the record and transmit it to the Attorney General. If the Attorney General, on inspecting the record, is satisfied that error has been committed to the prejudice of the State, and upon which it is important to the correct and uniform administration of the criminal law that the Supreme Court should decide, he may lodge 'the transcript in the clerk’s office of the Supreme Court and take the appeal. But a judgment in favor of a defendant .which operates as a bar to further prosecution shall not be reversed by the Supreme Court, even though error was committed in the trial to the prejudice of the State. Sections 2602, 2603, 2604, Kirby’s Digest. This is a method afforded the law officers of the State to take the opinion of the Supreme Court upon questions which they consider important to t'he correct and uniform administration of the criminal law.
The court is met with an objection to a consideration of the other questions involved by the insistence that the indictment cannot be sustained, as it charges DuEaney with being an accessory to a bribery of himself, the bribery committed by Kizer, instead of accusing him of being guilty of the crime of bribery. The reason for the form of the indictment is neither apparent nor important on this appeal. The gist of the charge is that DuRaney was an accessory to Kizer bribing him ; and the testimony which was offered by the State and rejected by the court, which ruling the State has asked the court to review, would be competent under this indictment if competent under an indictment charging bribery, and the sufficiency of the indictment is not a question now. Such evidence has been admitted by other courts . in a case of soliciting a bribe (Higgins v. State, 157 Ind. 57) and in attempting to corrupt a juror (State v. Williams, 136 Mo. 293), and no distinction in principle can be discerned between such cases and one where the charge is being an accessory to bribery of the defendant himself.
The testimony of Cox, which the State offered and which the court refused to admit, would have proved, if the jury had believed it, that DuRaney held the position of- chairman’ of the Railroad Committee through Cox’s influence; and that he'had an agreement with DuRaney to pay him a thousand dollars, and did pay him that sum, to do Cox’s will in regard to railroad matters, and that the general agreement also included other matters, which were any bills that came before that committee in which Cox was interested, or in which corporations that he represented were interested; that DuRaney was to take money on them as a bribe for doing his will; that he did take it in regard to railroad legislation and on some other measures in pursuance of the general agreement to do Cox’s will, and that money was put up to defeat this bill, and Cox was interested in it, but Cox was absent when the bill came up, which was the reason that he did not personally give the money to DuRaney upon it; but the State could not connect Cox and the defendant regarding this particular bill, other than through the general scheme above stated, which scheme was entered into at the beginning of the session and before the telephone bill was introduced. Was this testimony of Cox competent?
The principle of evidence that offenses or acts 'similar to the one charged may be competent for the purpose of showing knowledge, intent or design is as thoroughly established as the general proposition that other crimes or offenses cannot be shown in evidence against a defendant charged with a particular crime. While the principle is usually spoken of'as being an exception to the general rule, yet, as a matter of fact, it is not an exception; for it is not proof of other crimes as crimes, but merely evidence of other acts which are from their nature competent as showing knowledge, intent or design, although they may be crimes, which is admitted. In other words, the fact that evidence shows the defendant was guilty of another crime does not prevent it being admissible when otherwise it would be competeht on the issue under trial. Higgins v. State, 157 Ind. 57; 1 Wigmore on Evidence, § 300. This court has applied the principle under discussion in Howard v. State, 72 Ark. 586; Johnson v. State, 75 Ark. 427; Woodward v. State, 84 Ark. 119.
The Court of Appeals in New York stated the principle as follows: “Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistakg.or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial.” And in discussing the fourth ground above enumerated, it says: “Fourth: As to a common plan or scheme. It sometimes happens that two or more crimes are committed by the same person in pursuance of a single design or under circumstances which render it impossible to prove one without proving all. To bring a case within this exception to the general rule which excludes proof of extraneous crimes, there must be-evidence of system between the offense on trial and the one sought to be introduced. They must -be connected as parts of a general and composite -plan or scheme, or they must be so related to each other as to show a common motive or intent running through both.” People v. Molineux, 168 N. Y. 264.
Mr. Wigmore,- in speaking of the admissiblity of such evidence in charges of bribery, says: “On a charge of bribery, any of the three general -principles — knowledge, intent and design— may come' into play. To show' knowledge of the nature of the transaction, a former transaction of the sort may serve, as indicating an understanding of the particular transaction. To show intent, another transaction of the sort may serve to negative good faith. To show a general design, a former attempt towards the same general end may be significant.” x Wigmore on Evidence, § 343. In the notes to this section may be found a review of the authorities; and it is found that they are not uniform in sustaining the principles announced by Mr. Wigmore, and he indulges in some caustic criticism of the courts that take views opposed to his statement-of the correct principle.
The best thought on the subject seems to be with Mr. Wigmore, and is found applied in the following bribery cases: Guthrie v. State, 16 Neb. 667; Higgins v. State, 157 Ind. 57; State v. Schnettler, 181 Mo. 173. The last case is especially pertinent here. Schnettler was on trial charged with accepting a bribe, when a member of the House of Delegates in the city of St. Louis, in regard to a certain bill authorizing a corporation to construct, maintain and operate a street railway business on certain streets and other public places in said city. Evidence was adduced to show that a “combine,” as it was called, was formed by members of the House of Delegates to corruptly control legislation. Over the objection of the defendant, the State was permitted to prove that the defendant had received $2500 as a bribe to induce him to cast his official vote in favor of a bill previously pending before the House of Delegates affecting the lighting of t'he public streets of St. Louis — a separate and distinct measure from the one concerning which he was charged with bribery. The court said: “The authorities all hold that as a general rule the State cannot prove against a defendant the commission of offenses other than the one charged and for which he is upon trial; but an exception exists with respect to this rule where the collateral crime is brought into a common system, a system of mutually dependent crimes, or is so linked to the crime under trial as to show that it is part of the same scheme or understanding, or in some way have some logical connection with the crime charged.” Applying the above announced principle to the facts of the case, the court then said: “It appears from the evidence that about' the time of the organization of the House of Delegates a combination was entered into between various members of that body, including the defendant, for the purpose of controlling legislation by t'he members of the combine demanding and receiving money consideration for the passage or defeat of certain bills which might be brought before them, to be paid by-the individuals, corporations or parties interested therein, and that defendant did in fact receive the sum of two thousand five hundred dollars on account of his vote on the lighting deal. This arrangement was not only with respect to the lighting deal in which he received two thousand five hundred dollars for his vote, but it applied to all other matters of a similar character which might come before the House of Delegates, and was, therefore, part of the same scheme, or arrangement, and logically connected with the charge in the information, hence formed an exception to the general rule, and the facts in respect thereto were admissible in evidence for the purpose of showing that the crime charged was within the scope of the purpose for which the conspirators were banded together, and to explain and corroborate other testimony which bore directly upon the commission of the crime charged.”
The bill mentioned in this indictment was before the committee of which defendant was chairman. The evidence offered tended to prove that all bills affecting corporations which were referred to the committee of which he was chairman should be looked after by him in the interest of his. corrupt general agreement with Cox, where Cox was interested, and that Cox was interested in this bill. While it is not offered to be shown that DuLaney knew that Cox was interested in this particular bill, yet the bill was of that character that was covered by his general agreement with Cox, and it was a part of the same scheme and arrangement, and logically connected with the matters covered in his general agreem'ent. A perusal of the evidence in the case shows that, had the State’s witnesses been believed, the jury would have been authorized to convict; and, on the other hand, had the defendant’s witnesses been believed, the defendant was fully-exonerated of the charge against him, and the jury warranted in believing the charge against him an effort to ruin him bjr his personal and political enemies. In view of such state of the evidence, it was manifestly important that proper corroborating evidence of either side be not excluded. The evidence offered was admissible for the purpose of showing that the crime charged was within the scope of the purpose for which it was alleged the defendant and Cox had conspired, and to explain and corroborate other testimony which bore directly upon the commission of the crime charged, which testimony might foe meaningless unless pointedly explained by this general corrupt agreement to which it was alleged this defendant was a party.
It is therefore the opinion of the court that the circuit court erred in not admitting the offered evidence.
