{ "id": 1684815, "name": "Harbor v. Campbell", "name_abbreviation": "Harbor v. Campbell", "decision_date": "1962-10-08", "docket_number": "5-2755", "first_page": "492", "last_page": "496", "citations": [ { "type": "official", "cite": "235 Ark. 492" }, { "type": "parallel", "cite": "360 S.W.2d 758" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "68 A.L.R. 1356", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "49 A.L.R. 1392", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "42 A.L.R. 1498", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "18 A.L.R. 2d 1307", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "233 Ark. 247", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1691668 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/233/0247-01" ] }, { "cite": "154 S. W. 215", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "107 Ark. 158", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1344020 ], "opinion_index": 0, "case_paths": [ "/ark/107/0158-01" ] }, { "cite": "217 Ark. 679", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723506 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/217/0679-01" ] }, { "cite": "213 Ark. 246", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1467026 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/213/0246-01" ] }, { "cite": "13 S. W. 2d 306", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "178 Ark. 1046", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1397105 ], "opinion_index": 0, "case_paths": [ "/ark/178/1046-01" ] }, { "cite": "235 Ark. 337", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1684803 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/235/0337-01" ] }, { "cite": "235 Ark. 33", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1684788 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/235/0033-01" ] } ], "analysis": { "cardinality": 482, "char_count": 8581, "ocr_confidence": 0.535, "pagerank": { "raw": 4.0300674008737604e-07, "percentile": 0.9069870482796487 }, "sha256": "dd972ea9d643602a9aeb97e9a6eef848387e7899f665cb4931cb4e28dbb6b974", "simhash": "1:4d188b84573aa3e0", "word_count": 1498 }, "last_updated": "2023-07-14T18:12:51.729415+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Harbor v. Campbell." ], "opinions": [ { "text": "Ed F. McFaddin, Associate Justice.\nThis appeal stems from a traffic mishap which occurred when the appellee Campbell\u2019s car struck the rear of a car occupied by appellants and caused injuries and damages for which appellants sought recovery. The jury verdict and judgment was for Campbell; and appellants seek a reversal because of matters which occurred in the course of the trial.\nI. Conviction For Traffic Violation. Appellants sought to introduce in evidence a certified copy of the record of the Municipal Court in which appellee had paid a fine for \u201cfailure to yield the right-of-way,\u201d which charge arose because of the traffic mishap here involved. The Trial Court was correct in refusing to allow the Municipal Court record to be introduced in evidence. Section 75-1011 Ark. Stats, says:\n\u201cNo record of the conviction of any person for any violation of this act shall be admissible as evidence in any court in any civil action.\u201d Our recent cases of Garver v. Utyesonich, 235 Ark. 33, 356 S. W. 2d 744; and Girard v. Kuklinski, 235 Ark. 337, 360 S. W. 2d 115, are in point.\nII. Plea of Guilty For Traffic Violation. When Appellee Campbell was testifying, appellants sought to interrogate him to show that for this identical traffic mishap Campbell had entered a plea of guilty in Municipal Court to the charge of failure to yield the right-of-way. The Trial Court refused this evidence of a plea of guilty; and such ruling was error. A plea of guilty for traffic violation for the identical traffic mishap is certainly a declaration against interest; and such plea of guilty is as admissible as any other declaration against interest in any other case. In Covington v. Little Fay Oil Co., 178 Ark. 1046, 13 S. W. 2d 306, we said: \u201c It is well settled that any statements made by a party, to a suit against his interest, bearing on material facts, are competent as original testimony.\u201d Appellants sued appellee for damages, alleging appellee had been guilty of six acts of negligence. One of these was \u201cfailing to have his car under proper control,\u201d and another was \u2018 \u2018 failing to exercise ordinary care under the existing circumstances.\u201d Appellee\u2019s plea of guilty to \u201cfailure to yield the right-of-way,\u201d had clear evidentiary value on the alleged acts of negligence. In Miller v. Blanton, 213 Ark. 246, 210 S. W. 2d 293, we said: \u201cAppellant Miller testified that a charge of reckless driving was filed against him as a result of this collision, and that he pleaded guilty to this charge . . . This testimony as to appellant\u2019s plea of guilty was competent as showing a deliberate declaration against interest by said appellant. 20 Am. Jur. 545\u201d\nIII. Comments Of The Trial Judge. One of the grounds of negligence levelled against the appellee was the claim that he was driving while intoxicated. Robert Harbor testified that immediately after the traffic mishap he smelled alcohol on Campbell\u2019s breath. Other witnesses testified that immediately after the mishap they saw Campbell throw some beer cans ont of his car into the bushes; and a State Trooper testified that he found four unopened cans of cold beer and one empty can in the bushes pointed out to him by some of the witnesses. When Campbell was on the witness stand, the following occurred on cross-examination:\n\u201cBy Mr. Rawlings:\n\u201c Q. You don\u2019t know what time you left home?\n\u201cA. I don\u2019t remember exactly what time it was. * * *\n\u201c Q. You can\u2019t tell the jury what time you left home ?\n\u201cA. I can not.\n\u2018 \u2018 Q. The truth of the matter, you were so drunk that you don\u2019t know?\n\u201cA. I don\u2019t think so, I - - (interrupted)\n\u201cMr. Denman, Sr.: I object to that.\n\u201cThe Court: The objection is sustained.\n* * * #\nMr. Rawlings: Well, he testified he wasn\u2019t drunk, so don\u2019t I have a right to ask him if the truth of the matter is that, wasn\u2019t he so drunk that he don\u2019t know what time he left home.\n\u201cThe Court: Well, I don\u2019t think it is proper to come out and ask a man, that kind of a question, when there is no proof about his being drunk, so far.\n\u201cMr. Rawlings: If the court please, I want to ask for a mistrial at this time, because there is evidence in this record that this man threw beer out of his car, that he had an odor of alcohol on his breath; and the statement of the court that - - (interrupted) * * *\n\u2018\u2018 The Court: That\u2019s far different from being drunk; having the odor of alcohol on his breath is far different from a statement that he was drunk.\n\u201cMr. Rawlings: We wish to object to the statement the court is making in the presence of the jury. \u2019 \u2019\nWe have copied the pertinent cross-examination so there may be seen the full effect of the Court\u2019s remarks. At one place the Court said: \u201c . . when there is no proof about his being drunk, so far\u201d; and at another place the Court said: \u201cThat\u2019s far different from being drunk; having the odor of alcohol on his breath is far different from a statement that he was drunk.\u201d The appellants claim that these remarks of the Trial Judge constituted comments on the weight of the. evidence; and we agree with appellants. When the Court made these remarks, there was already in the record evidence that: (a) the appellee stated he could not remember what time he left home; (b) appellee had driven his car into the rear of a preceding car on the public highway; (c) the appellee had then thrown one empty and four unopened beer cans into the bushes; and (d) a witness had testified that he had smelled the odor of alcohol on the appellee\u2019s breath immediately after the collision.\nWe are of the opinion that said evidence already offered was sufficient to take the case to the jury on the issue of whether the defendant was guilty of negligence, in that he was driving his car while intoxicated. Such being true, the remark of the Trial Judge was a comment on the weight of the evidence as to intoxication. In Fuller v. State, 217 Ark. 679, 232 S. W. 2d 988, we quoted from our earlier cases, and summarized:\n\u201cThe requirement of Art. 7, \u00a7 23, of our Constitution, that \u2018judges shall not charge juries with regard to matters of fact, \u2019 applies as well to the credibility of witnesses and the weight to be given their testimony as to the outright truth or falsity of what they say. St. L. S. W. Ry. Co. v. Britton, 107 Ark. 158, 154 S. W. 215. And it applies not only to what judges tell juries in the course of formal instructions but also to what they say in colloquys with lawyers in the jury\u2019s hearing.\u201d\nIV. Appellate Procedure. The appellee urges one point to overcome appellants \u2019 entire appeal; and it relates to a procedural matter which we have considered, and which we find does not possess merit. The appellants duly filed notice of appeal and duly obtained extensions for the filing of the record. But the appellants delayed several months before formally filing with the Court the designation of the record and the points relied on for appeal. Appellee says that this delay \u2014 in filing the designation of the record and the points on appeal \u2014 is violative of Sections 8 and 11 of Act No. 555 of 1953, as now found in \u00a7 27-2127.2 and \u00a7 27-2127.5 Ark. Stats. We believe that this present contention by the appellee is an afterthought. The appellee apparently considered the time element immaterial, because, when the appellants filed their designation and points, the appellee designated additional matters for the record without making any claim that the original designation of the record and points had come too late. In short, appellee has failed to show any prejudice to him. Furthermore, the appellee filed no motion to dismiss the appeal because of such delay, but only urged it in the brief; so we cannot say that this case falls within our holding in Jones v. Adcock, 233 Ark. 247, 343 S. W. 2d 779.\nBecause of the errors of the Trial Court, as heretofore discussed, the judgment is reversed and the cause is remanded.\nIn 18 A.L.R. 2d 1307, there are cases cited from many jurisdictions to sustain the rule that proof of a plea of guilty is admissible as a declaration against interest.\nThere are a series of annotations on the subject, \u201cDriving While Intoxicated,\u201d as contained in 42 A.L.R. 1498; 49 A.L.R. 1392; and 68 A.L.R. 1356. In these annotations there is discussed the sufficiency of the proof of the condition of intoxication in criminal cases, and the admissibility of various bits of evidence. The holdings cited in the annotations fully support the conclusion that we have here reached.", "type": "majority", "author": "Ed F. McFaddin, Associate Justice." } ], "attorneys": [ "Terral & Rawlings and Gail O. Matthews, for appellant.", "Denman & Denman, for appellee." ], "corrections": "", "head_matter": "Harbor v. Campbell.\n5-2755\n360 S. W. 2d 758\nOpinion delivered October 8, 1962.\nTerral & Rawlings and Gail O. Matthews, for appellant.\nDenman & Denman, for appellee." }, "file_name": "0492-01", "first_page_order": 518, "last_page_order": 522 }