{ "id": 1388569, "name": "Sweeney v. State", "name_abbreviation": "Sweeney v. State", "decision_date": "1923-12-03", "docket_number": "", "first_page": "278", "last_page": "289", "citations": [ { "type": "official", "cite": "161 Ark. 278" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "42 N. Y. 270", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 504984 ], "opinion_index": 0, "case_paths": [ "/ny/42/0270-01" ] }, { "cite": "53 Ark. 387", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1911678 ], "opinion_index": 0, "case_paths": [ "/ark/53/0387-01" ] }, { "cite": "114 Ark. 239", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1536291 ], "opinion_index": 0, "case_paths": [ "/ark/114/0239-01" ] }, { "cite": "60 Ark. 450", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1903673 ], "opinion_index": 0, "case_paths": [ "/ark/60/0450-01" ] }, { "cite": "53 Ark. 387", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1911678 ], "opinion_index": 1, "case_paths": [ "/ark/53/0387-01" ] }, { "cite": "60 Ark. 450", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1903673 ], "opinion_index": 1, "case_paths": [ "/ark/60/0450-01" ] } ], "analysis": { "cardinality": 747, "char_count": 22766, "ocr_confidence": 0.479, "pagerank": { "raw": 1.0351013821927882e-07, "percentile": 0.549216575947092 }, "sha256": "e0431cccd103f1745f71fafa58fbb5409bce149d8a32443b44da433aeb7b4e6a", "simhash": "1:aaa6682dbd2216db", "word_count": 3969 }, "last_updated": "2023-07-14T20:04:40.179276+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Sweeney v. State." ], "opinions": [ { "text": "Wood, J.\nThe appellant was convicted of the crime of robbing Eli Hufstedler of certain moneys in June, 1922. The testimony of Hufstedler was to the effect that, in June, 1922, in Randolph County, Arkansas,- the appellant crawled up behind him and one McMullen, with his gun drawn, and commanded witness to put up his hands and give up his money. The testimony tended to prove that appellant obtained from the witness and his companion about $172. The witness testified that he had been in the habit of carrying money in a belt on his person. Appellant remarked to witness as follows: \u201cYou have more money on you. Where is that belt?\u201d Appellant tore witness\u2019 pants open to see if witness had the belt on. Witness was asked to state who knew that he carried money in Ms belt, and answered, \u201cClarence Estes knew I carried money in a belt.\u201d The appellant objected to the answer to the question and to the refusal-of the court to withdraw same from the jury. Witness, over the objection of appellant, was permitted to state that Clarence Estes had known for six months that witness carried money in a belt, and that he had known it up to three weeks before the robbery. The witness said he saw Clarence Estes on the day of the robbery, just before and just after the robbery. Estes lived at Imboden, Randolph County, near Sloan\u2019s, on Third Street. Appellant requested the court to exclude the above testimony, which the court refused to do, to which ruling the appellant excepted. Witness had seen appellant and Sam McCoy the Sunday before, but didn\u2019t know appellant then. Witness described in detail the manner in which appellant attempted to disguise himself, his dress and certain marks, a scar on his cheek, and positively identified the appellant as the man who robbed witness of his money. Witness stated that he and other parties sometimes went to the place where the robbery occurred for the purpose of gambling. Witness stated that the robbery occurred between nine and eleven o\u2019clock. The witness was asked, on cross-examination, if he had not stated before that it was twenty minutes to twelve o\u2019clock, and answered, \u201cNo sir, I said I got home at twenty minutes to twelve.\u201d Witness stated that he didn\u2019t remember that he -stated before that the robber? took place twenty minutes before twelve o\u2019clock. It happened before that time.\nWitness McMullen testified that lie and. Hufstedler were robbed on the day alleged, about twelve o\u2019clock. He could not say positively that appellant was the man, but lie looked like the man who robbed them. Another witness stated that he saw the appellant, on the day of the alleg\u2019ed robbery, coming from Cedar Brake, about half bent over, with a blue handkerchief over his face; that he spoke to appellant, and asked him what he wanted. Appellant replied that it was none of his business. Witness followed appellant, and he got faster as witness approached him. Witness positively identified appellant as being the man that he saw. It was some time between eight and nine o\u2019clock in the morning.\nWitness Andy Holcroft said that, on the day of the robbery, he saw appellant or a man that looked like him from his eyes up, at Cedar Brake, at Imboden. Witness had started to town, and heard Hufstedler hollering, and ran up to see what was wrong, and there was a fellow standing behind Hufstedler with a gun on him,\u2019 taking his money. Witness, after describing the appearance of the man he saw, stated that he could not identify the appellant as the man, except his eyes looked natural. Witness stated that the robbery occurred between ten and twelve o\u2019clock. His best judgment was about eleven-thirty. Witness was asked the following question: \u201cIf he had not heard Eli Hufstedler say, in private conversation with witness, after the case had been disposed of in the examining court, that the robbery took place within twenty minutes of twelve o\u2019clock?\u201d The State objected to the Question, and the court sustained the objection, to which the appellant excepted.\nWitness J. A. Baker testified that he saw the appellant two weeks before, near the scene of the robbery, through the cedars, and that when witness and others got up and left he followed them up the creek. Appellant objected to the above testimony of the witness Baker. The court overruled the objection, to which rulipg the appellant duly excepted.\nWitness Crabtree testified that he was at the examining trial of the appellant and Clarence Estes for the robbery. The trial was had just across the river from Imboden. ITe saw the appellant that day, and also Clarence Estes. Witness was permitted to testify, over the objection\u2019 of appellant, that he heard a conversation between Clarence Estes and appellant, on the day of the examining trial, as follows: Appellant said, \u2018\u2018Clarence, it is not fair for me to go down there by myself and you get out of this; you ought to go with me. \u2019 \u2019 The examining court had just bound appellant over to await 'the action of the grand jury and had turned Clarence Estes loose. The appellant made the remark in a jocular way. Witness didn\u2019t know why he said it. He spoke so every one around could hear him. The appellant duly excepted to the ruling of the court in admitting the above testimony.\nJ. IT. Turner was a witness for the appellant. He testified that he saw the appellant on the streets on the day of the alleged robbery, at Hoxie, between nine and ten o\u2019clock, and saw him again on the streets at Hoxie about 11:40 o\u2019clock. Witness testified that he didn\u2019t know how far it was from Hoxie to Imboden. He had gone over the route a .number of times. He had driven it in two hours. He didn\u2019t know where the cedar brake was \u2014 th\u00e9 alleged place of the robbery. Witness, at the time of the alleged robbery, was marshal of the town of Hoxie. Witness was asked the following question: \u201cBasing your answer upon your experience as an officer, and knowing the country as you do, and basing your answer upon your knowledge of the distance- from Imboden to Hoxie, and basing your answer upon your knowledge as to the time it would necessarily require to travel over the usual route of travel, .by the method of travel known at the time of the alleged commission.of this offense, could this defendant have been in the town of Imboden, or at a point from a quarter to a-half mile north of Imboden, in that cedar brake, and committed the crime charged against him in this indictment, and been .in Hoxie, at the time you saw him there that day?\u201d The court refused to permit the witness to answer the question, to which ruling the appellant duly excepted.\nSeveral 'witnesses testified on behalf of the appellant, and their testimony tended to establish an alibi. The appellant was a witness in his own behalf, and, among other-things, he stated that he didn\u2019t know anything about the robbery, and had never heard of it until he was arrested at Jonesboro, Arkansas.\u2019 He testified as to his whereabouts on the day of the robbery and also where he stayed the night before. On cross-examination he was asked where he lived, and answered that he lived at Truman. He was asked how long he had been at Hoxie, and stated that he had been there for two or three years, off and on, a week or so at a time. Then he would go home to help his father with his crop.\nOver the objection of appellant he was also asked the following question: \u201cQ. You are a gambler \u2014 you gamble?\u201d Witness answered, \u201cI gamble some, but I am not a gambler. Q. You have been in jail? A. Yes sir, I have been in jail at Walnut Ridge and here.\u201d Appellant, over his objection, was then asked, \u201cAnywhere else?\u201d and answered, \u201cYes sir; at Harrisburg.\u201d On redirect examination appellant testified as follows: \u201cQ. The time you were in jail here was when you were charged for this offense? A. Yes sir. Q. And also when you were in jail in Walnut Ridge?\u201d and -answered, \u201cYes sir.\u201d Appellant was then asked this question: \u201cWhat were you in jail for at Harrisburg?\u201d and answered, \u201cI was charged with robbery'.\u201d He was-asked, \u201cWere you acquitted on that charge?\u201d and answered, \u201cYes sir.\u201d\nThe jury returned a verdict of guilty. The court overruled appellant\u2019s motion for a new trial, and entered a judgment sentencing him to the State Penitentiary for a period of three years, from which is this appeal.\nThe first assignment of error is that the court erred in permitting the prosecuting witness to state that Clarence Estes knew that he had money, and that he carried money in a belt, and that he saw Clarence Estes on the morning of the day of the robbery \u2014 just before the robbery and just after \u2014 and that Estes lived at Imboden. The appellant also contends that the court erred in permitting the witness Crabtree to testify that, after the examining trial' of appellant and Estes, he heard appelant say to Estes, in effect, that it was not fair for appellant to be committed to jail and for Estes to get out; that Estes ought to go too.\nThere was testimony in the record to the effect that appellant and Estes were on trial before the committing magistrate for this alleged robbery and that the above remarks of the appellant were concerning the result of that trial, the appellant haying been bound over to await the action of the grand jury and Estes having been discharged. This testimony was in the nature of a confession by the appellant that Estes was with him in the charge of alleged robbery, and that, if it were fair to bind the appellant to await the action of the grand jury, Estes, under like circumstances, should also be bound. The testimony was competent as a circumstance tending to prove a conspiracy between appellant and Estes to commit the alleged robbery. The testimony was competent as a circumstance because it tended to prove that the appellant and Estes had knowledge of the fact that Hufstedler had money, which he carried on his person in a. belt. If we are correct in oiir conclusion that the effect of the above testimony tended to prove a conspiracy between appellant and Estes to rob Hufstedler, then it was clearly competent.\nBut, if we are mistaken, and if the testimony did not tend to prove a conspiracy between the appellant and Estes to rob Hufstedler, and if, as appellant contends, it only tended to prove that Estes, and not the appellant, had knowledge of the fact that Hufstedler carried money on his person in a belt, then the testimony could not possibly have been prejudicial to the appellant. Qn the contrary, it would rather tend to show that Estes, and not the appellant, was tlie one who had the guilty knowledge, and was most likely tire one who perpetrated the crime. Certainly there was no error prejudicial to the appellant in the admission of this testimony.\nThe court did not err in permitting the witness Baker to testify that he saw the appellant about two weeks before the date of the robbery, near the scene of the robbery, and that, when witness and others got up and left, he followed them up the creek. The testimony of this witness further disclosed that at Cedar Creek, the locus of the robbery, there was a thicket which was a resort or rendezvous, where the witness Baker and others went to play cards and shoot craps every Sunday. The testimony was competent. It tended to identify the appellant and to prove that he had, a very short time previous to the robbery, visited the scene thereof and obtained knowledge of the surroundings. The State had the right to prove that the appellant visited the scene of the robbery and obtained knowledge of the surroundings, and also the fact that parties were assembled there to gamble. This knowledge would better enable him to carry out his purpose, if such was his purpose, to commit the crime, which was soon thereafter committed and of which he was accused.\nThere was no error in refusing to permit-the witness Turner to answer the hypothetical question which appellant\u2019s counsel propounded to him. This question assumed some facts to exist which there .was no testimony tending to establish, and the question was not responsive to any undisputed facts in evidence. Besides, the facts to which the witness had testified were not of a character to call for an opinion -on the part of the witness. It was not expert testimony, nor was it testimony in which it was proper to elicit the opinion of the witness. The witness stated the facts within his knowledge, and the conclusion to he drawn from these facts was for the jury. The question propounded to witness Andy Holcroft, to which appellant objected, was not proper. No proper foundation had been laid for such question. The court did not err in refusing to allow the question to be answered.\nThe court did not err in refusing to permit counsel for the State, on cross-examination, to ask the appellant if he were a gambler, and whether he had been in jail. The appellant, in answer to these questions, stated that he had gambled some, and that he had been in jail at Walnut Ridge, at Pocahontas, and at Harrisburg. The connection in which these questions were asked shows that the prosecuting attorney was attempting to prove the recent residence, occupation and history of the accused as affecting his credibility. To be sure, it would not be proper to ask an accused, who becomes a witness in his own behalf, whether he had recently been in jail on account of the crime for which he was then being tried, or for other crimes, merely for the purpose of showing that he had been previously accused of crime. Such questions, on cross-examination, would be like asking the accused if he had not been accused or indicted for crime. We have frequently held that it was not proper to ask a defendant, on cross-examination, whether he had been previously indicted for crime. Bates v. State, 60 Ark. 450; Hunt v. State, 114 Ark. 239; Johnson v. State, ante, p. 111; Youngblood v. State, ante, p. 144. An indictment is a mere accusation, and, of itself, does not carry any implication or warrant any inference either of guilt or of immoral or bad character. Likewise, the mere fact that a defendant had recently been in jail would not of itself justify the inference that the accused was a man of bad morals, or guilty of any crime that would affect his credibility as a witness. But where such questions are asked, not for the purpose of showing merely that the witness has been accused or indicted for a crime, or incarcerated merely upon a charge of criminal conduct, but for the purpose of showing that the witness\u2019 habits are vicious, his character immoral, his occupation disgraceful or disreputable, his associations and surroundings with criminal classes, and that the imprisonment might have been the result of, or as punishment for, a felony of which the accused had been convicted, such questions may be asked, for they tend to impair the credibility of the witness.\nAs is said by Judge Hemingway, speaking for the court, in the well-considered case of Hollingsworth v. State, 53 Ark. 387: \u201cIt is always competent to interrogate a witness, on cross-examination, touching his present or recent residence, occupation and associations; and if, in answer to such questions, the witness discloses that he has no residence or lawful occupation, but drifts about in idleness from place to place, associating with the low and vicious, these circumstances are proper for the jury to consider in determining his credibility.\u201d And again, quoting from the case of Real v. People, 42 N. Y. 270: \u201cA witness, upon cross-examination, may be asked whether he had been in jail, the penitentiary or State prison, or'any other place that would tend to impair his credibility, and how much of his life he has passed in such places. \u2019 \u2019\nIn this case it is manifest, from the connection in which the questions were propounded, that the State was endeavoring to ascertain what was the present, the recent, and past history and antecedents of the accused, his occupation and associations, as \u00a1affecting his credibility. If counsel for the appellant conceived that the questions were propounded merely for the purpose of showing that the appellant had been accused of crime, he should have asked the court specifically to rule that such questions were not proper for that purpose. As these questions were asked just following the previous questions as to appellant\u2019s residence, and whether or not appellant gambled, and after his affirmative answer that he did gamble, it occurs to us that a general objection was not sufficient to warrant the court in excluding the questions. They come well within the rule that such questions are proper for the purpose above stated, as announced in Hollingsworth v. State, supra. See also Clayton v. State, and cases there cited.\nWe find no prejudicial error in any of the rulings of the court, and the judgment is therefore affirmed", "type": "majority", "author": "Wood, J." }, { "text": "Hart, J.,\n(dissenting). Judge Humphreys and myself think that the trial court committed prejudicial error in allowing the prosecuting attorney to ask the defendant if he had not been in jail, and requiring\u2019 the defendant to answer the question. In answering the question of whether or not he had been in jail the defendant said that he had been in jail at Walnut Ridge and here (meaning, by the latter, the place where he was being tried). Further questioning elicited the response from the defendant that he was in jail at Walnut Ridge and at the county seat, where he was being tried, charged with the offense of which he was convicted.\nAgain, he was asked if he had been in jail anywhere else, and he answered, \u00a3iYes sir, at Harrisburg.\u201d In response to further questioning he answered that he was in jail at Harrisburg, charged with robbery. He stated, further on, that he had been acquitted of that charge.\nWhile we recognize that there is a distinction between independent evidence introduced for the purpose of impeaching a witness, under \u00a7 4187 of Crawford & Moses \u2019 Digest, and the questions which are permitted, in the discretion of the court, to be put to a witness tending to affect his credibility, within the rule laid down in case of Hollingsworth v. State, 53 Ark. 387, we are of the opinion that the questions asked do not fall within the rule laid down - in the case last cited. Judging by the context of the decisions from New York, there cited, it is evident that the court meant that the defendant could be questioned as to being in jail as a punishment for crime. This is shown by the later decision of Bates v. State, 60 Ark. 450. In that case it was held that it was error to permit the defendant in a criminal case to be asked, on cross-examination, whether he had hot been previously indicted for a felony, and that his answer was that he was indicted, but acquitted, did not remove the prejudice that may have resulted.\nThe court again quoted from a New York case, with approval, the following: \u201cThe single fact that he (the defendant) had been complained of and held for trial for the commission of a crime did not affect his moral character.\u201d This was upon the ground that the witness was presumed to be innocent until convicted. This rule of evidence follows the defendant throughout the trial, and it is plain to us that it is violated if his credibility can be affected by the fact that he has been in jail on account of the crime for which he is being -tried or on account of another crime for which he was acquitted.\nThe prosecuting attorney may ask the defendant, on cross-examination, if he has not committed another crime, for this is asking him if he had not committed the act. But this court has repeatedly held that a defendant could not be asked whether or not he had been indicted for a particular offense, on the ground that an indictment does not prove guilt. To ask him if he has not been accused of another crime and confined in jail pending a trial is to allow that to be done indirectly which we have said cannot fie done directly. Such a course is equivalent to asking a defendant if he has not been indicted or charged with another crime. Again, to allow his credibility to be affected by the fact that he was so unfortunate as not to be able to give bail, upon being arrested for the crime for which he is being tried, is, in effect, to destroy the rule of evidence that the defendant is presumed to be innocent until proved to be guilty.\nAgain, in a capital case, where the defendant was not entitled to bail, his credibility as a witness would be affected by the fact that he had been confined in jail, if he should elect to take the stand in his own behalf, and thus the presumption of innocence would be effectually destroyed. Courts should not suffer prosecuting' attor- \u2022 neys to -do anything indirectly which could not be done directly. The fact that a defendant has been in jail, charged with the crime for which he is then being tried, or for an independent crime, should not be allowed to affect his credibility as a witness, and thus effectually overcome the presumption of innocence in his favor.", "type": "dissent", "author": "Hart, J.," } ], "attorneys": [ "Schoonover & Jackson, for appellant.", "J. S. Utley, Attorney General, John L. Carter, Wm. T. Hammock and Barden Moose, Assistants, for appellee." ], "corrections": "", "head_matter": "Sweeney v. State.\nOpinion delivered December 3, 1923.\n1. Criminal law \u2014 evidence op declaration op accused. \u2014 Where there was testimony that accused and another were on trial before a committing magistrate for alleged robbery, testimony that accused, after the .examining trial, stated to the other, who was discharged, that it was not fair for accused to be committed to jail and the other to get out, that the other ought to go to jail too, was competent as a circumstance tending to prove a conspiracy between the two to commit robbery.\n2. Criminal law \u2014 harmless error. \u2014 In a prosecution for robbery, testimony that accused stated to one tried with him in examining court and discharged, that the latter ought to be committed to jail also, if erroneously admitted, was not prejudicial.\n3. Robbery. \u2014 evidence.\u2014In a prosecution for robbery, evidence that defendant was seen, two weeks before the alleged robbery, near the scene of the robbery, was admissible to show his familiarity with the surroundings.\n4. Criminal law \u2014 hypothetical questions. \u2014 It was not error to refuse to permit a witness to answer a hypothetical question which assumed facts to Lexist when there was no testimony tending to establish such facts.\n5. Witnesses \u2014 impeachment.\u2014Statements of a witness inconsistent with his testimony cannot be shown where no proper foundation has been laid.\n6. Witnesses \u2014 impeachment.\u2014In a prosecution for robbery, it was not error to permit the prosecution to ask accused on cross-examination if he was a gambler, and whether he had been in jail, in the absence of a specific objection.\nAppeal from Randolph. Circuit Court; John C. Ashley, Judge;\naffirmed.\nSchoonover & Jackson, for appellant.\nJ. S. Utley, Attorney General, John L. Carter, Wm. T. Hammock and Barden Moose, Assistants, for appellee." }, "file_name": "0278-01", "first_page_order": 306, "last_page_order": 317 }