{ "id": 8717407, "name": "Wilburn Davis v. State of Arkansas", "name_abbreviation": "Davis v. State", "decision_date": "1967-02-27", "docket_number": "5196", "first_page": "43", "last_page": "47", "citations": [ { "type": "official", "cite": "242 Ark. 43" }, { "type": "parallel", "cite": "411 S.W.2d 531" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "241 Ark. 646", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1724154 ], "opinion_index": -1, "case_paths": [ "/ark/241/0646-01" ] }, { "cite": "265 S. W. 974", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1924, "opinion_index": 0 }, { "cite": "166 Ark. 290", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1378539 ], "year": 1924, "opinion_index": 0, "case_paths": [ "/ark/166/0290-01" ] }, { "cite": "120 N. W. 194", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "83 Neb. 686", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 2827712 ], "opinion_index": 0, "case_paths": [ "/neb/83/0686-01" ] }, { "cite": "206 Ark. 998", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1485003 ], "weight": 2, "year": 1944, "opinion_index": 0, "case_paths": [ "/ark/206/0998-01" ] }, { "cite": "241 Ark. 646", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1724154 ], "opinion_index": 0, "case_paths": [ "/ark/241/0646-01" ] } ], "analysis": { "cardinality": 377, "char_count": 5693, "ocr_confidence": 0.557, "pagerank": { "raw": 8.560772536778103e-08, "percentile": 0.48826630432893964 }, "sha256": "68d269ee26944a1735915be99fca1e0392bbba3075a398ae4d2055c5171741de", "simhash": "1:3680fc5e3081e397", "word_count": 988 }, "last_updated": "2023-07-14T15:00:12.038660+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Harris, C. J. and FoglemaN., J., dissent." ], "parties": [ "Wilburn Davis v. State of Arkansas" ], "opinions": [ { "text": "OoNley Byrd, Justice.\nThe appellant, Wilburn Davis, was convicted by a jury of the crime of false pretense, Ark. Stat. Ann. \u00a7 41-1901 (Repl. 1964). The judgment was affirmed by this court on December 12, 1966, Davis v. State, 241 Ark. 646. On this rehearing, we deal only with the reprimand given by the trial court to appellant\u2019s attorney before the jury for having talked with the prosecuting witness during the noon hour.\nThe record shows that Mr. Sam Montgomery, attorney for appellant, had talked to Mrs. Scott-Tucker during a noon recess of the trial, and on cross-examination he was asking her about the conversation when the presiding judge, on his own motion, said:\n\u201cI don\u2019t know what you were doing talking to the State\u2019s witness, during the noon hour. Did you have' Mr. Coxey\u2019s permission \u2014 .* * * You are supposed to ask the other side\u2019s permission. You should tell the other side if you are going to talk to their witnesses.\n\u201cMR. MONTGOMERY: I presumed he saw me there and I didn\u2019t know there was any rules.\n\u201cTHE COURT: I don\u2019t know anything about this procedure, but that is the customary procedure in this area. If you are going to talk to their witnesses and they don\u2019t object, why, you can go ahead.\n\u201cMR. MONTGOMERY: I think you can talk to any witness if you can get the truth of the matter.\n\u201cTHE COURT: I will see about that. Go ahead. You\u2019ve got to have some regulations.\u201d\nIn this, the court w\u00e1s in error. Section 39 of the Canons of Professional Ethics, adopted by this court, provides as follows:\n\u201cA lawyer may properly interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party. In doing so, however, he should scrupulously avoid any suggestion calculated to induce the witness to suppress or deviate from the truth, or in any degree to affect his free and untrammeled conduct when appearing at the trial or on the witness stand.\u201d\nWe had before us, in McAlister v. State, 206 Ark. 998, 178 S. W. 2d 67 (1944), an unmerited rebuke of counsel in the presence of a jury, and we there held that remarks of the trial court which could be construed as a reflection upon counsel\u2019s knowledge and skill as a lawyer and as a suggestion that counsel was guilty of improper conduct constituted prejudicial error. In so holding, we said:\n\u201cAlthough it may be assumed that the trial judge did not intend that his remarks should in any way prejudice the rights of appellant, or influence the jury, still his choice of words was unfortunate. The words to grant your motion \u2018would just be silly\u2019 doubtless was construed by the jury to mean that the motion itself was silly, and they could have gathered the impression that the court was intentionally belittling it, and holding counsel up to ridicule for having made it. Viewed in this light, the court\u2019s remarks could have been construed as a reflection upon counsel\u2019s knowledge and skill as a lawyer, and, perhaps,^ even as a suggestion that counsel was guilty of improper conduct. Not only this, but when counsel objected to the remarks of the court, which he unquestionably had a right to do, he was informed that the court would not \u2018put up with any more of this foolishness.\u2019 This constituted an unmerited reprimand and prejudicial error calling for reversal. In the case of Adams v. Fisher, 83 Neb. 686, 120 N. W. 194, it was held that it is prejudicial error for the court to reprimand counsel for interposing a proper objection.\u201d\nWhen we consider that justice ought not only to be fair, but appear to be fair, we find that the rebuke given to counsel here is prejudicial error. To the same effect see Jones v. State, 166 Ark. 290, 265 S. W. 974 (1924).\nNothing said herein is intended to any way limit the right of a trial court to discipline lawyers or witnesses. However, it would appear that in most instances the better practice, except in extreme cases, would require the trial court to do so out of the presence of the jury.\nReversed and remanded.\nHarris, C. J. and FoglemaN., J., dissent.", "type": "majority", "author": "OoNley Byrd, Justice." }, { "text": "John A. Fogleman, Justice,\ndissenting. The majority reverse this case upon a ground which I deem to be inappropriate. It is for actions of the trial judge which were in nowise prejudicial. I hope that we do not, by practice, adopt a rule that judgments may be reversed on non-prejudicial error. I see no rebuke or reprimand in the language addressed to appellant\u2019s attorney. While the court was in error as to his statements about interviewing witnesses, the trial judge admitted that he might be when he said to the attorney: \u201cI will see about that. Gro ahead, you\u2019ve got to have some regulations.\u201d The judge did not discipline the attorney in any way and did not prohibit any action the attorney sought to take. After the trial judge told him to go ahead, the attorney followed up his previous examination and inquired of the witness about their noon recess conversation, without any objection, interruption or limitation. The judge\u2019s statement was a far cry from saying that he would not put up with any more of counsel\u2019s foolishness, from reprimand for interposing a proper objection, from re-fleeting upon counsel\u2019s knowledge and skill, or that he was \u201cfacilitating a trial like a crawfish does backward\u201d,, as occurred in the cases cited as authority by the majority.\nI am authorized to state that Harris, C. J., joins .in this dissent.", "type": "dissent", "author": "John A. Fogleman, Justice," } ], "attorneys": [ "8am Montgomery, for appellant.", "Bruce Bennett, Attorney General; H. Clay Robinson, Asst. Atty. Gen., for appellee." ], "corrections": "", "head_matter": "Wilburn Davis v. State of Arkansas\n5196\n411 S. W. 2d 531\nOpinion delivered February 27, 1967\n[Supplemental opinion on rehearing.]\n[Original opinion delivered Dec. 12, 1966, 241 Ark. 646.]\n8am Montgomery, for appellant.\nBruce Bennett, Attorney General; H. Clay Robinson, Asst. Atty. Gen., for appellee." }, "file_name": "0043-01", "first_page_order": 65, "last_page_order": 69 }