West v. State , 209 Ark. 691 ( 1946 )

Appellant was convicted by a jury of the crime of rape and his punishment fixed at death. He has appealed.

For reversal it is first urged by appellant that the lower court erred in permitting the prosecuting attorney to ask the prosecuting witness numerous leading questions. We have examined carefully the testimony and find that this assignment of error should not be sustained. While some questions addressed to this witness were leading in form, we have often said that control of the examination of witnesses as regards to propounding of leading questions on direct examination is a matter within the discretion of the trial court. Murray v. State, 151 Ark. 331,236 S.W. 617; Crank v. State, 165 Ark. 417, 264 S.W. 936; Wallace v. State, 177 Ark. 892, 9 S.W.2d 21. There was no abuse of discretion by the lower court in allowing the questions complained of to be asked.

For his second ground for reversal appellant urges that the lower court erred in permitting the prosecuting attorney to read a written report made by the superintendent of the State Hospital for Nervous Diseases as to appellant's mental condition.

After his arrest appellant was, by order of the circuit court made under authority of the provisions of 11 of Initiated Act No. 3 of 1936, Acts 1937, p. 1384, sent to the State Hospital for Nervous Diseases for observation. The superintendent of that institution, as required by the statute, made a written report, the substance of which was that appellant was sane and was responsible for his acts.

On the trial of the case certain testimony tending to show abnormal mental condition of appellant was introduced. After this testimony had been heard, no official of the State Hospital for Nervous Diseases was offered as a witness, but the lower court, over the objection of appellant's counsel, permitted the prosecuting attorney to read to the jury the report made by the superintendent of the State Hospital for Nervous Diseases as to the mental condition of appellant. This was error, because, as was stated by us in the case of Jones v. State, 204 Ark. 61,161 S.W.2d 173, such proceeding violated the provision of our constitution (Art. II, 10) guaranteeing to the accused the right to be confronted by witnesses against him and the privilege to cross-examine them. The same rule was announced in Smith v. State, 200 Ark. 1152,143 S.W.2d 190.

On behalf of the state it is urged that admitting this report in evidence, even if erroneous, was not prejudicial to appellant, because there was no evidence from which the jury could have found that appellant was mentally irresponsible.

The evidence offered to show insanity of appellant was somewhat meager, but it cannot be held that it was insufficient to make an issue as to the mental condition of appellant. The lower court evidently considered that such an issue was created by the testimony, because it permitted the reading of the report of the superintendent of the State Hospital for Nervous Diseases, which report, of course, would have been entirely irrelevant in the absence of some showing that appellant was of unsound mind; and the lower court further recognized the existence of this issue by giving an instruction on the degree of insanity necessary to excuse commission of a crime. We cannot say that the lower court was wrong in its conclusion that there was some substantial testimony to support appellant's contention that he was irresponsible.

For the error indicated the judgment of the lower court must be reversed and the cause remanded for new trial.