ARK.] SISSON V. STATE. • 783 SISSON V. STATE. Opinion delivered May 4, 1925. 1. WITNESSES — IMPEACHMENT — TESTIMONY BEFORE GRAND JURY.— Testimony of a witness before the grand jury is admissible on the trial of a criminal case only to contradict his testimony at the trial. 2. CRIMINAL LAW — HARMLESS ERROR.—Any prejudice by reading to the jury the statements of a witness before the grand jury was removed by an instruction that such statements were not substantive evidence and could not be considered by the jury.
784 SISSON V. STATE. [168 3. WTrNESSES—IMPEACHMENT AS TO CHARACTER.—A witness may not be impeached by testimony as to his character, based on what the impeaching witness knew and what everybody said about him, as the test is what is his general reputation in the community where he lives, under' Crawford & Moses' Dig. § 4187. 4. CRIMINAL LAW—CHANGE OF VENUE.—Where, on application for a change of venue in a liquor prosecution, a supporting affiant testified that he based 'his opinion that ,defendant could not obtain an impartial trial in the county upon the fact that defend-. ant's case had been widely discussed all over the county by the candidate for sheriff, who was thereafter elected and who stated •hat he was "going to send 'defendant to' hell or to the penitentiary," such statement being prejudicial and justifying affiant in belietring that the minds of the inhabitants had been prejudiced, held that the court abused its discretion in denying a change of venue. Appeal .from Randolph Circuit Court; John. C. Ashley, -Judge ; ,reversed. SehoonOver & Jackson and 'Smith/ & Blackford, for appellant. • H. -W. Applegate, AttorneV General, and 'Darden ]lfoose,' Assistant, f or appellee. WOOD, J. B. 'F. 'Sisson was convicted , in the Ran, dolPh Circuit CoUrt of , the crime of selling intoxicating liquor, and sentenced by judgment Of the court' to impris: onment in . the State , Penitentiary for a period of 'one year, from which judgment he appeals... When the case was called for trial the appellant moved for a change of venue, setting up in his motion that the minds of the inhabitants of Randolph County were so prejudiced against him that . he could not obtain a fair and impartial trial therein. The motion was supported •by 'the affidavits of two person g .' The prosecuting attorney resisted the motion, and had one of its supPorting oTh•ants called• to testify. The witness *was asked : " . Q. . Do you know of any person in Richardson Township, the township in which Maynard is 'situated, who is so prejudiced against Mr. Sisson that he would not give him a fair and impartial triaP? A. No sir. *I will
ARK.] SISSON V. STATE. 785. say thatI have mit talked to all the people .all over Ran. dolph, County;: and: I ! do 'not mean to . say..that he cannot get a -fair . and impartial trial in:Randolph . County; but.I! do :mean-to: say, !that this!, matter has been discussed largely, and Much of .the discussion in regard to .this case:thas been , :detrimental to the rights -of Mr... Sisson. One of the thing§ that prompted rae to' sigh that affidavit-- was that ! I have been informed . that the present sheriff,. Mr. Perrin,. and at that time chief deputy under. Mr,. Gullett, stated at various . times, Pn the stump, when he,. was making his canvass for . the , office of sheriff, that he was going to send B. F. Siwn to, hell or the peMtentiary ope, .if he , was elected sheriff.;! I ; was told by a, number of , different ,persons that! Mr. Perrin stated rep,eatedly,., and publicly, that; he was going to .send mr.. Sisson to hell or the penitentiary one. I knew that the sheriff's nifice., had a yast influence, and, if it were I going to trial, I would 'Unt Want fo be tried' in a c3unty where subh' state,- mentS as , that had gone out froM 'the sheriff's office' Arid I have' heard since then tht`Mr: Perrin threatened to d6. Mr.' SiSson' iTiolenCe. Mr. Perriir approached me this . Morning about this; and I dO 'fidt knOw -Whetherhe wanted to provOke a difficulty or' netibut he stated' sonnet thing about . this party not being able 'tn . get 'a 'falr . and' ithpartial trial in this county; and- r told him that 1 had heard 'that he''stated he WOuld send him to hell : Or-the • penitentiary! . one:-. Q. ! Do you now say' that he canmit get a fair and ! impartial trial in Randolph County?! -.A. J.Would say this; that.I . would not ! Want the present 'sheriff ! to summon the, jriry 'to try me,-if it were I - being- tried! under the . lsame circumstances. If the present sheriff. ; should- summon. the. jury to !try 'MTh, I . do' , nof.,believe then that the .could. *! * !*, Q.- - You' are :not+acquaintedf with:the sentiment of the people over the cotintr generally regarding. this' . case.? A., I 'wit]: mot . Say- that. I acquainted with the' sentiment.of the people iu all partk of the county, but I will'say itiS ! my information that this! case has been widely discussed in all townships -in the -
786 SISSON V. STATE. [168 county. Q. You base your opinion that he could not obtain a fair and impartial trial in Randolph County upon the fact that the sheriff has taken an interest in this case? A. Yes sir, and partly what I have heard the sheriff state himself, and bis speeches he made over the county in his campaign. Q. You did not hear those statements A. No sir. * ' ' Q. And- you have heard this discussed generally by people from all pdints in the county ? A. I will say that it has been widely discussed. Q. Do you believe that, in view of the statements of -Mr. Perrin publicly, on the stump, and 'because of his being sheriff of the county at this time, it would have a tendency to prejudice the people of the county against Mr. Sisson? A. I would feel that it was hazardous for me, and I would not want to be tried in the county, if he selected the jury." Witness was then asked about the various townships in the county specifically, and named two townships in which he said he thought he had heard it talked, but could not name the parties that he had heard talking. He stated, "I know that this matter has been . widely talked, but I could not name the parties that I have heard discuss it." The defendant thereupon offered the testimony of the other affiant to the effect that he was one of the defendant's lawyers; that he had heard the present sheriff, while he was a candidate for sheriff, make a public speech in every township in the county except two, and that on every stump in the county Mr. 'Perrin, who is now sheriff,, told about Mr. Sisson having been indicted twice as an accessory to (witness) having been shot, and that he was then having Sisson indicted by the grand jury of Ran-dolph County, then in session, seven or eight times for peddling whiskey, and that he was going to send Sisson to the penitentiary before he quit, and that the people of the entire county of the class from which juries are made attended these public speakings and heard these statements.
ARK.] SISSON V. STATE. 787. The trial court refused to hear the offered testimony, and stated that the other affiant had shown that he did not know the condition of the minds of the people of the county with regard to the case, and that, inasmuch as the law required the motion for change of venue to be supported by two witnesses, the offered testimony would only show that the motion was supported by the testimony of one affiant. The appellant excepted to the ruling of the court in excluding the offered testimony. The court thereupon overruled the motion for a change of venue. One witness, Bob Lynch, testified to the effect that he and one William Junkersfield went to the house of Sisson to get some liquor. It was dark when they got there. Junkersfield was talking to some one that witness took to be Sisson. When Junkersfield came back to the car, they drove up the road about half a mile and stopped, and Junkersfield asked the witness if he vvanted a drink. He had what they call "white mule" whiskey. Witness did not see Junkersfield get any whiskey from the appellant. Junkersfield testified that he and Bob Lynch went to Ben Sisson's house, and stopped; that a fellow out in the yard asked witness what he wanted, and witness replied that he wanted a half gallon of whiskey, and the man said "All right," and witness gave him $6. Witness didn't know whether the man was Ben Sisson or not— could not say. The record shows that the following then occurred: "Q. You swore before the grand jury? A. I said I bought it at Mr. Sisson's house. The witness was shown his statement before the grand jury and was asked: Is that your signature? and answered, Yes sir. Q. I will ask you, if you did not state— By the court : You need not answer that question. Let the witness look at his statement. The statement was then delivered to witness. By the prosecuting attorney : Look at those last few lines. Defendant objects. The court
788 SISSON v. -STATE. [168 • then remarked: Let the witness read his whole: statement, if -he wishes • to. : . :The prosecuting attorney '!then - asked . the witness: -Did you not testify : before the grand jury . that this was . the -man that you • bought that •liquor froth? By . the court : Don't ansWer that question. Q. , Was it not a man 'that yon haVe become . acqu ' ainted with since that tima,''as' Ben SissOn, *that you boUght the liquor from. ? A. I &AM not . say.. • It was dark, , 'and ihe man that I bought the wldskeY from was bareheaded, in the yard, Carrying in wood. 'I do not know who he 'Was. Q. You are unwilling to say at this , time that this. is the than ? ( The defendant ' Objected . tO the. ' question; which ''ivaS' by the Court overruled, to whia exceptioUs Saved): A. I could not' say. ' Q. , Yon are:Unwilling at 'this time to say thaethe man tbat yoU, bave .siriee beedme'acciiiainted . Witb ''ag Ben' Sgson Was' , the Man You hought the liqUer frOth? 'A l'eould net'saY.'i The prosecuting attornoy then asked ! :the. . witness • several times if he did, not Make , the . statement. be , fore the grand jury that he was not acquainted with the appellant at . the . time he bought the liquor, but . hact . niet . hini a number Of 'tithes 'since, .iind wits 'sure that . it Was Sisson-, that ha bought ' the, liquor from.. The witness, 'over the ' objec-ti . on of appella . n t; . wa , s perinifte06 answer that le told the grabd'jUrY that it 'mis , t his bUuse. Tile witness wa have bean ' 'SisSthi; as it v". Ta, at s lianded'his testithonY.before tbe giand jury; amt . -Was asked if' he . Signed that, statement, and 'he answered that he. did. • Witness was.finally asked • V the court the following question: • "Q. Did you make thatstatement before tbe.grand ,jury?, A. , Yes sir. Q. Is that true? . A. Yes , sir." , •Gounsel for appellant moved- to exclude all the ;testi-. mony tha witness•before the grand. jury and his *signed - statement as incompetent. •The court , ruled that whatever .statement the witness made before • the .grand jury was not evidence before the jury.; that his . statement made •! before the grand jury should not be cOnsidered• by•them ;
ARK.] •SISSON V. STATE. 789 that the'jury must take his evidence from-his statements on the witness .stand at that time. A witness by the -name of Clarenee Ragan testified for the State that he : purchased whiskey froM the appellant in the fall of 1923, in Randolph County, Arkansas, and Paid him $10 for same. Several witnesses-were caned fOr appellant, who testified to the effect that the reputation of Ragan was bad. One of these witnesses, 'John Clark,- after testifying that he was acquainted with. the general reputation of Ragan for truth and ,morality .and •that such reputation was , bad, was asked this question : • "Based upon what you know yourself and what .all the people say about ,him, would you- believe him on:oath?" The State objected to the question, and tbe objection - was snstained. The defendant did not except to the • ruling of the court. • • - The appellant contends that the judgment should be reversed (1), because the 'court . erred in refusing-. to grant 'his motion for a chang'e of venue; (2), that the court Allowed incompetent and prejudicial evidence . tO be forced froth the prosecuting witness in the Presence and hearing of the jury; (3), that the witness' JOhn Clark should have been permitted to answ:ll- the question asked .1.. One - Of • the supporting affiants to appellant 's 'thotiOn for a change Of venue testified that hiS 'statement 'to' the effeet that the minds of tbe inhabitants . of Ran-dolph County were So prejudiced against the appellant that a fair and impartial' trial could' not-- be : had' therein was grounded 'upon 'his :belief from* what he' had heard • that one Perrin had said at' various times on 'the stump When he Was canvassing of Randolph • as. a candidate f6r the office of sheriff. The affiant had heard that Perrin stated repeatedly and publicly that he "was • going to send Mr. Sisson to' bell or the penitentiary one." The 'affiant concluded from this -that the minds Of the inhabitants of Randolph County would be :prejndiced against the appellant,' and that appellant could-not obtain
790 SISSON V. STATE. [168 a fair and impartial trial in that county if Perrin summoned the jury. But it was shown that, after Perrin was elected sheriff, he was, on application of the appellant, disqualified, and did not summon the jury by which appellant was tried. The testimony of this supporting affiant was to the effect that he was not acquainted with the sentiment of the people in all pnrts of Randolph County, but his information was that appellant's case had been widely discussed, and that much of the discussion had been detrimental to the rights of the appellant. Witness did not mean to say that appellant could not get a fair and impartial trial in Randolph County, but he knew that the sheriff's office had a vast influence, and he would not want to be tried in the county where such statements as that had gone out from the sheriff's office. The witness didn't testify that he heard any one from any part of the county say that he had been prejudiced against the . appellant by reason of what Perrin had said in his speeches while canyassing 'the county. The testimony of the affiant, taken as a whole, therefore, was to the effect that, in his opinion, from what he had been informed by others that Perrin had said.in his campaign speeches concerning the appellant, appellant could not obtain an impartial trial in Randolph County. The testimony. of the affiant does not show that be bad any personal and direct knowledge of the sentiment of the people of Randolph County towards the appellant from having heard any one express a sentiment that was prejudi-•cial or derogatory to appellant. The affiant himself did not testify that he had heard Perrin or any one else express a sentiment that was prejudicial or -derogatory to the appellant. The court therefore did not abuse its discretion in overruling the motion- for a change of venue. In Dewine v: State, 120 Ark. 302-309, we said: "Upon the whole we canna say, from a perusal of the teStimony, that the court erred in finding that the supporting witnesses to the petition for a change of venue 'were lacking in §ufficient knowledge, and rested their
ARK.] SISSON V. STATE. 791 conclusions upon erroneous • premises to' the extent that they would • not be deemed credible persons within the • meaning of the statute. In passing upon a question of' this kind,.much is left to the fair discretion and judgment' of the trial court, and each case must be determined by its own particular facts." See 'also Spear v. State, 130 Ark. 457. 2. We have often ruled "that it is not proper to admi.t as substantive testimony at the trial evidence heard before the grand jury. In other words, one cannot be convicted upon evidence heard only by the grand jury, such evidence being admissible for the purpose only of contradicting the conflicting testimony given by the wit-nesse§ at the trial:" Minor -v. State, 162 Ark. 136-139, and authorities there cited. See also Lind v. State, 137 . Ark. 92-106. But the instruction of the cbutt - to the jury in the case at bar to the effect that, whatever statement the witness made before the grand jury was not evidence before them, and could not be considered . by them, was sufficient to remove any prejudice that might have otherwise been created in the minds of the 'jury by the statements read in their presence - from the testimony of the witness taken before the grand jury. . • 3... The court did not err in refusing . to allow the witness Clark to testify concerning the character . of the witness Ragan, based upon wbat Clark knew himself and upon what all the people said about him. Such is not the proper method . for impeaching the t6stimony a witness. The standard is the general reputation of the witness sought to be impeached in the community where he lives. Section . 4187,..C. & M. Digest ; Dean v. Stilt6-," 130 Ark. 322-325; Cole v. State, 59 Ark. 50. There is no reversible error in the record, and the judgnIent is therefore affirthed. • WOOD, .(on rehearing) : We have concluded upon . reconsideration of the testimony that the trial court erred in holding that the affiant, whose testimony is set
792 , SissoN V. STATE. [168 forth in the original opinion, is not a credible person. Thetestimony of this supporting witness showed that he based his opinion that the appellant could not obtain a fair and impartial trial in Randolph County upon the fact thathe had been informed that the appellant's case —the' charge of selling intoxicating liquors—had been widely discussed all over the county by one Perrin, who was then a candidate for sheriff, to the effect that he was "going to send Mr. Sisson to hell or the penitentiary, one.", . ]Ihe testimony is undisputed that Perrin had made the above announcement generally and all over the. .connty. Perrin was elected sheriff. The *statement was certainly extremely prejudicial to the appellant, and was, calculated to arouse in the minds of ithe inhabitants of Randolph County. who heard the same a . prejudice against Sisson.. Even though, the affiant did not him- . self hear Perrin make such a statement and did not hear any one.else express a •sentiment that was prejudicial or derogatory to the . . appellant, nevertheless the fact remains that 'such a derogatory statement- to appellant's cause by one who wa . s 'aspiring to the sheriff's office in the county and who was thereafter elected to that office was calculated, a . s we have stated, to create a prejudice in the minds . , of the voters against the appellant; and it furnished a foundation Which fully justified the affiant in his belief that the minds of the inhabitants of the county had , been prejudiced against the appellant. .. . The trial court erred and abused its diseretion in holding that the . affilant, Judge Meeks, was not a credible person in the meaning of the change of venue law. While much is left to . the fair discretion and judgment of the trial court in 'determining the credibility of supporting witnesses to• a petition for a change of venue, nevertheless the court may abuse its discretion in passing upon particular facts and we are convinced that such is the case here. See Mills v. State, 1005. The motion for rehearing is therefore granted, and the judgment,
ARK. 793 for the error in holding that one of the affiants to the affidavit supporting the petition for a change ef venue was not credible person, is reversed, and the cause is remanded for a new trial. . MeCuLtoeli, C. J.., dissents:.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.