Williams v. State , 175 Ark. 752 ( 1927 )

The facts are fully stated in the original opinion. It will be seen that the testimony of Lizzie Williams was exceedingly prejudicial to the appellant. She positively identified the appellant as the one who was cutting the fence of McKinzie on the night alleged. According to her testimony, if believed by the jury, the appellant was unquestionably guilty. The appellant therefore had the right on cross-examination to attack the credibility of the witness by proving specific acts of immoral conduct on her part. Lockett v. State,145 Ark. 415, 224 S.W. 952; Hollingsworth v. State,53 Ark. 387, 14 S.W. 41; Jordan v. State, 141 Ark. 504,217 S.W. 788; Kiles v. State, 143 Ark. 409, 220 S.W. 458; Martin v. State, 161 Ark. 177, 255 S.W. 1094; Sweeney v. State, 161 Ark. 278, 256 S.W. 73.

As set forth in the original opinion, counsel for the appellant asked Lizzie Williams on cross-examination the following question: "Isn't it customary for you and Frank McKinzie to drive around in his car and leave his wife at home?" Counsel for appellant objected, and the court announced, "We are not doing into that." The witness then said: "If they are going to try my character, I want to get a lawyer." Thereupon the court further remarked: "Your character is not on trial here. We all know you have a good character, Miss Williams." Counsel for the appellant objected to the remark of the court, and duly saved his exceptions to such remark. Counsel for appellant then further asked Miss Williams: "Didn't Oscar Williams catch you and Frank McKinzie in a compromising attitude about two weeks ago?" Counsel for the State objected, and witness again said: "I want a lawyer if they are going to try my character." Thereupon the court remarked: "We are not going into that, Miss Williams; that is not competent here — we know you have a good character." Appellant duly objected, and excepted to the remarks of the court.

A majority of the court have concluded on rehearing that the remarks of the court in ruling on the objection by the State to the cross-examination of the witness invaded the province of the jury and were in violation of art. 7, 23, of the Constitution, which expressly provides that judges shall not charge juries with regard to matters of fact. The court, it will be observed from the record, did not permit counsel for the appellant on cross-examination to go into the question as to whether Miss Williams was of good moral character, but the court instead assumed, and stated, as a fact, in the presence of the jury, that the witness' character was not on trial, and that all knew she had a good character. It is difficult to conceive how any stronger language could be used to express the fact that the witness, Miss Williams, was of good character than that used by the court. The language is susceptible of no other construction than that not only the presiding judge knew that the witness was of good character, but that all who were present knew the same fact.

In Sharp v. State, 51 Ark. 147, 155, 10 S.W. 228, 231, 14 Am. St. Rep. 27, a leading case in our reports, Judge BATTLE, speaking for the court, uses the following language: "In all trials the judge should preside with impartiality. In jury trials especially he ought to be cautious and circumspect in his language and conduct before the jury. He should not express or intimate an opinion as to the credibility of a witness or as to controverted facts." See also Jones v. State, 166 Ark. 290,265 S.W. 974; Railey v. State. 170 Ark. 979, 282 S.W. 5. The above language of Judge BATTLE is quoted literally in 26 R.C.L., page 1027, 28, where many cases to the same effect in other jurisdictions are cited in notes to the section. The learned Justice, with his usual painstaking research, cited and quoted from several cases to support the holding of the court, and from McMinn v. Whelan,27 Cal. 300, as follows: "From the high and authoritative position of a judge presiding at a trial before a jury, his influence with them is of vast extent, and he has it in his power by words or actions, or both, to materially prejudice the rights and interests of one or the other of the parties. By words or conduct he may on the one hand support the character or testimony of a witness, or on the other hand may destroy the same, in the estimation of the jury; and thus his personal and official influence is exerted to the unfair advantage of one of the parties, with a corresponding detriment to the cause of the other. We regret the necessity for an expression of our disapproval of the irregularity of which complaint is made, and though we do not impugn the expression as designed to aid the side of the plaintiff, we may say, we should not hesitate to reverse the judgment because of it, if the same depended in any material degree upon the testimony of the witness whose character and standing was thus indorsed." The language of the trial judge in the California case was to the effect that the witness, who was being cross-examined, "was a woman of respectability." The above quotation from the California Supreme Court is therefore especially pertinent here, because the trial judge in the case at bar used even stronger language in saying, "We all know that you have a good character, Miss Williams."

In 16 C.J., p. 832, Mr. Clark, the author of the article therein on Criminal Law, says: "It is also improper for the trial judge to intimate that the witnesses for the prosecution are credible, or to hint that those for the defense are not credible"; and at page 834 he further says: "The remarks or conduct of the judge during the trial indicating his opinion as to the credibility or lack of credibility of a witness or of the weight of any evidence he may give, constitutes error." Numerous cases are cited in notes to support these texts.

Under the above authorities it occurs to the majority of the court that it was manifest error and necessarily prejudicial to the appellant for the learned trial judge to declare as a fact that one of the material witnesses for the State was of good character. We said in the original opinion that the questions asked the witness on cross-examination by counsel for the defendant were proper under Hughes v. State, 70 Ark. 420, 68 S.W. 676, and Martin v. State,161 Ark. 177, 255 S.W. 1074. Such being the case, the court should have allowed the witness to answer the questions without comment, and should have given the jury an opportunity to determine from her answers as to whether or not she was a credible witness, instead of declaring in advance of her answers that she was of good character. If the witness had answered the questions in the affirmative (at least the last one) her answers would have proved conclusively that she was a woman of immoral character, and even if she had answered in the negative, the issue as to the credibility of the witness was still for the jury; and it was the jury's sole function to determine that issue. But, under the circumstances disclosed, the remarks of the court were tantamount to saying to the jury, "Miss Williams is a woman of good character and therefore a credible witness, and you are not at liberty to disbelieve her testimony." The prejudicial effect of such remarks of the trial court was not cured by telling the jury that they were the sole judges of the credibility of the witnesses and the weight to be given their testimony, because the court had already declared that she was a woman of good character, and therefore a credible witness, and the court did not, while instructing the jury, withdraw his previous remarks in their presence that "Miss Williams was a woman of good character," and did not instruct the jury that these remarks could not be considered by them. Therefore the prejudicial effect of such remarks was never removed from the minds of the jury.

Because of the error in the improper remarks of the trial court the judgment must be reversed, and the cause will be remanded for a new trial.

HART, C.J., and KIRBY, J., dissent.