133 Ark. 16 | Ark. | 1918
(after stating the facts).
“When persons to the number of twenty or more are unlawfully or riotously assembled in a city or town, the sheriff of the county and his deputies, and the other peace officers and magistrates of such city or town, together with the mayor or other chief officers of the city or town, must go among the persons assembled, or as near as possible, >and in the name of the State command them to disperse.
We do not deem it necessary to set out the indictment at length, but we have compared it with the section of the statute just quoted and the offense is charged substantially in th,e language of the statute itself. ■ The language of the statute describes the offense with certainty and in such cases it is sufficient to charge the offense in the words of the statute which creates it. Holland v. State, 111 Ark. 214.
‘ ‘ The defendant is charged with having knowledge of an assemblage of twenty or more persons gathered about the telephone building for the illegal purpose of intimidating .and preventing the employees of the company from having access to said building, and in failing to require such unlawful assemblage to disperse.
“Any testimony to the effect that the defendant was advised that other acts of violence, such as shutting off the gas, cutting the electric wires, or shutting off the water, or climbing the fire escape, would not be sufficient to charge the defendant with knowledge of the character and purpose of the assemblage, as charged in the indictment.”
The court properly refused to give this instruction, which would have invaded the province of the jury. It is proper to prove before the jury all the unlawful acts of the assembled crowd of which the defendant was informed as tending to show that the assembly was an unlawful one within the meaning of the statute and that the defendant had knowledge of that fact.
The refusal of the court to give other instructions at the request of the defendant are assigned as error. We do not deem these assignments of error of sufficient importance to warrant a detailed discussion of them. The matters embraced in the refused instructions were either covered by instructions already given by the court or were not correct statements of the law as applied to the facts of the present case.
‘ ‘ Q. Mr. Manning, how long have you been knowing Mayor Wright?
“A. Probably five or six months.
“ Q. You don’t feel very kindly to him, do you ?
“A. I have nothing against him at all.
“Q. Do you mean to sit up here and-tell the jury that?
“A. Yes, sir.
“Q. Haven’t you been traipsing over this town ever since Mayor Wright has been in office and talking about him, because he got after you for selling cigarettes and running a gaming device? Objected to.
“A. Yes, sir. Objection sustained; you can ask him what this feeling is towards the defendant.
“Yes, sir; we propose to show that.
“The defendant proposes to prove by this witness that this witness has an,ill-feeling toward Mayor Wright; that he has had such feeling practically ever since Mayor Wright has been in office, that he has expressed his fe'elings toward Mayor Wright on numerous occasions, and that this ill-feeling has been brought about because Mayor Wright has attempted to prohibit him and others from violating the laws by selling cigarettes and from conducting gaming devices known as punch boards at his plac'e of business.
“Mr. Cravens: The State has no objection to asking this witness what his feelings are towards the defendant whether friendly or unfriendly, and how long said feelings, if they do exist, have existed.”
The court erred in not permitting the witness to answei the question propounded to him. The bias of a witness is not a collateral matter; but it was most important to the defendant to show that on numerous occasions the witness had expressed himself as having ill-feelings towards the defendant, and that the ill-feeling had been brought about because Wright as mayor had attempted to prohibit the witness and others from selling cigarettes and cpnducting gaming devices contrary to law. Pecuniary interest, personal affection or hostility, sympathy or animosity, a quarrel or prejudice may always be shown to «discredit a witness. Cornelius v. State, 12 Ark. 782; Crumpton v. State, 52 Ark. 273; Hollingsworth v. State, 53 Ark. 387, and McCain v. State, 132 Ark. 497, 195 S. W. 363, and cases cited.
In the present ease, the record shows that the question was excluded, not because counsel had not laid the proper foundation, but because the court held that it was not competent. The court sustained an objection to the question and told counsel that he might ask the witness what his feelings were towards the defendant. The record shows that the witness remembered making expressions of ill-feeling towards the defendant on numerous occasions because the latter as mayor had tried to prohibit him from selling cigarettes and running a gambling device contrary to the statute. Hence it will be seen that he was particularly inquired of upon the subject. Besides the record shows that the witness remembered the statements he had made, and he did not need the protection of the court in having the question asked with more particularity with reference to time, place and occasion. Under the circumstances as disclosed by the record, it would have been a vain thing and a useless consumption of time to have inquired of the witness with more particularity. It has been suggested that the answer was inconsistent with the answer of the witness that he had no ill-feeling towards the defendant and for that reason was properly excluded. The court does not think the answer inconsistent. The witness, after having his attention called to the matter, might have remembered expressing ill-feelings towards the defendant on numerous occasions, and, after doing so, might have changed his mind about having no prejudice against the defendant; or the witness may admit having made expressions tending to show his ill-feeling towards the accused and deny that he had any such ill-feeling.
Again it has been suggested that no prejudice could have resulted to the defendant from the exclusion of this testimony because the witness did not testify to any material fact in the case which was disputed. This contention is made in the application of the well known rule that this court will only reverse for error prejudicial to the rights of the defendant. The State filed an amended abstract of the testimony in this case.
Grady Manning testified that about 11 o’clock at night, he went to the southwest corner of the telephone building where the crowd was assembled and found that they were trying to cut off: a piece of the pipe; that the mayor was not present at that time bnt later it was reported that he was coming; that he came down the street and stopped on the other side of it; that the person stopped digging and in a few minutes commenced again; that witness walked back over there and the mayor walked over that way; that the mayor walked over to the crowd and stood there a few minutes.
On cross-examination as abstracted by the State we quote the following:
‘' CROSS-EXAMINATION.
“He was there when they were digging at the southwest corner of the building near the sidewalk. This was a little back between the sidewalk and curbstone. Quite a bunch were digging; they had a large rock trying to break it in; one man had a rock and was pounding over the pipe. The mayor was not there at first, but was (here later. He was there while the business I describe was going on, but he first walked down the street where his machine was. He then walked to where they were digging, as near as he could get. He could see the digging. I think he saw it, if he was as close as witness was, which was probably five feet. He was probably standing five feet from where they were digging. Did not hear defendant say anything. Could give no idea how many people were there when the digging was going on. There were a number of the striking girls and others.”
“redirect examination.
“I would judge roughly that there were three or four hundred people around there on the sidewalk, street and lawn. While there I heard them say ‘they were going aftei the gas.’ ”
The testimony of this witness tended to show directly that thq mayor saw them digging up the gas pipe.
Other witnesses testified only to the fact that he was in the crowd that night but they did not know whether or not he went to where the persons were digging up the gas pipe. Be that as it may, the witness in question testified to material facts on that point, and the defendant had a right to impeach him by showing ill-feeling on the part of the witness towards himself. It can not be said that the testimony in question was undisputed because it was expressly contradicted by the defendant and the testimony of numerous other witnesses in his behalf tended to contradict it.
For the reasons given, the court erred in excluding from the jury the question propounded to the witness Grady Manning, and his answer thereto as set out above. For that error the judgment will be reversed and the cause remanded for a new trial.