McAlister v. State , 99 Ark. 604 ( 1911 )

Wood, J.,

(after stating the facts). The court did not err in permitting the State to ask the witness Bob Williams if he and others, not using the defendant’s name, had not been engaged in the assassination of a negro from ambush near the place where Dr. Kirby was killed. The answer to this question, if in the affirmative, would have tended to prove that the witness was an assassin, and had associated with an assassin, and therefore was so utterly depraved as to render him wholly unworthy of belief. Any question may be asked a witness on cross examination tending to prove that he is guilty of specific acts involving moral turpitude, for all such acts would tend to .affect his credibility as a witness. Our statute, Kirby’s Digest, § 3138, prescribing that “a witness may be impeached by evidence that his general reputation for truth or immorality renders him unworthy of belief, but not by evidence of particular wrongful acts,”, has no application to the cross examination of a witness, but only where there is an effort to impeach a witness by evidence introduced for such purpose by the opposite party. As was said by this court in Hollingsworth v. State, 53 Ark. 387, at page 390:

“The right to impair the evidence of a witness by cross examination must not be confounded with the right to impeach a witness by evidence introduced by the opposite party. The former may be exercised within a more extended range than the latter.”

In that case we quoted from the Supreme Court of New York in Newcomb v. Griswold, 24 N. Y. 298, as follows:

“It is well settled 'that, for the purpose of impairing the credit of a witness by evidence introduced by the opposite party, such evidence must go to his general character; that proof of specific aots of immorality is not competent. Yet it is held that, for the purpose of discrediting his testimony, the witness may be asked upon cross examination as to specific acts.”

In Ware v. State, 91 Ark. 555. it is held that “a witness may be asked as to specific acts for the purpose of discrediting his testimony.” Again in Hollingsworth v. State, supra, we said:

“It is always competent to interrogate a witness on cross examination touching his present or recent residence, occupation and association.” See also Hughes v. State, 70 Ark. 422.

“In some jurisdictions a witness’ acts or conduct can not he shown on his cross examination to impeach him, and such cross examination is prohibited equally with independent proof of such acts or conduct.” See cases cited in 7 .Encyclopedia of Evidence; page 176, and note. “But in more jurisdictions a witness may be cross examined as to his particular acts or conduct that are relevant to the impeachment of his character for -truth, although they are wholly disconnected with the cause on trialciting a great many cases in a note from various jurisdictions, among them Little Rock Vehicle & Implement Co. v. Robinson, 75 Ark. 548, where this court, speaking- through Mr. Justice McCueeoch, said:

“Great latitude is allowed in the cross examination of a witness touching his residence, occupation and habits, so as to reflect light upon his credibility, and specific acts of immorality may be thus elicited which could not be proved by other impeaching witnesses.” But, while it was proper to permit the witness to be asked as to specific acts involving moral turpitude affecting his credibility as ,a witness, it was error to permit the State to call Dr. Wall for the purpose of contradiction. “Where a witness is cross examined as to a particular act of misconduct relevant to his character for truth but disconnected with the cause on trial, the cross examining party is bound by the answer.” 7 Encyclopedia of Evidence, page 180, and cases cited.

“In order to avoid an interminable multiplicity of issues, it is a settled rule of practice that when a witness, is cross examined on a matter collateral to the issues he can not, as to his answer, be subsequently contradicted by the party putting the question. The test of whether a fact inquired -of in cross examination is collateral is this: Would the cross examining party be entitled to prove it as part of his case, tending to establish his plea?” Butler v. State, 34 Ark. 480; Plunkett v. State, 72 Ark. 409; Abbott v. Herron, 90 Ark. 209; Ware v. State, 91 Ark. 555; Sellers v. State, 93 Ark. 313. See also: Billings v. State, 52 Ark. 303; Tones v. Malvern Lumber Co., 58 Ark. 125; Hinson v. State, 76 Ark. 366; Hot Springs Street Ry. Co. v. Bodeman, 76 Ark. 302.

It is clear that the State will not be allowed to prove as a part of her case that Williams took part in the assassination of a negro. That would have been a collateral issue. “A cross examining party is concluded by the answer which the witness gives to a question concerning a collateral matter, -and no contradiction will be allowed, even for the purpose of impeaching the witness.” 29 Am. & Eng. Enc. of Law, (1 ed.), 793, and cases cited in note.

But the State contends that the uncontroverted evidence shows that appellant is guilty of the crime charged, and that therefore the judgment should be affirmed, notwithstanding the error mentioned above. We have set out at length the statement oí facts by the Attorney General in the most favorable light to the appellee; and while there was abundant evidence to sustain the verdict, there was evidence on behalf of the appellant which, if believed by the jury, would have warranted them in returning a verdict of not guilty. The theory of the State was that appellant, Sullivan and Williams were in a conspiracy to murder Kirby, and that, in pursuance of such conspiracy, they went to the place where Kirby was assassinated and lay in ambush for hours on the roadside, waiting- for him to come, and finally, just before the killing-, sent Williams to ascertain whether Kirby might not have returned home another way, while -the other two remained on watch and killed him as he -passed during Williams’s temporary absence. Williams’s testimony tended to rebut this theory, and was therefore very material for appellant. The improper method of impeachment allowed by the court was highly prejudicial to appellant. The theory of appellant was that he and his companions, Sullivan and Williams, left the scene of the assassination before the same took place, and that he was at another and different place when the crime was committed, and his own testimony and the testimony of Williams and others tended to establish that fact. In a case of circumstantial evidence like this it is always a question of fact for the jury, and not of law, as to whether or not the party accused is guilty of the crime with which he is charged. We can not take that question away from the jury.

We find no reversible error in the other assignments contained in the motion for a new trial, but for the error indicated the judgment muist be reversed, and the cause remanded for a new trial.