68 DUVAL AND RICE V. STATE. [171 DuVAL AND RICE V. STATE. Opinion delivered May 17, 1926. CRIMINAL LAW—PROOF OF OTHER cumEs.—Proof of other- crimes committed several years prior to the commission of the offenses of • which defendants were convicted was inadmissible, apd was prej-. .udicial where the evidence as to defendant's g • uilt was conflicting. Appeal from Pulaski Circuit Court, First -Diviiion; John W..Wade, Judge; reversed. Frank43. Pittard, for- appellant. • - • H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee. -MoCur_Locn, C.•"J: ApPellants, DaVe DuVal . and Jethro Rice, together with George Seymore, were -each. indicted for the separate offenses of possessing fa still-worm, for manufactUring mash, and for manufaeturing and by consent . all the cases against all of the defendants were tried together; resulting in the cOnvic-' tion . of eaoh of them for the offenses named, and DuVal and Rice have pro . secuted their-appeal to this court. &Ain Hopper and two other prohibition officers testified in-substance that, after • receiving information that a still was being.operated on a cerWn farm about twen-ty-five miles' east of Little Rock, in Pulaski CbuntY, -they went to the place' . in an automobile; that, as they approached the hou g e-,' they saw -Rice open the . door and look out,'and then slam the 'dOor, and, as they speeded their car up and got close to the house, all three of the defendants . jumped out of a back window and ran a;way, and-were caught'by twO of the officers. The witnesses testified that, when they went into the house, they found a two hundred-gallon copper still, complete with a worm and cap, and that it was in full operation, and whiskey wis coming out ofthe worm. Witness Hopper was permitted to testify, over the objection of appellants, that he had seen them with large quantities of whiskey in their possession several years before this occurrence, and the State was permitted, over appellants' abjection, to prove by the court sten-
ARK.] DUVAL AND RICE v. STATE. 69 ographer that appellant DuVal, in testifying in the trial of one Rudd in the Pulaski Circuit Court about two years prior to this occurrence, stated that he (DuVal)' had theretofore been engaged in the business of selling liquor, • but had quit the business. Ilopper testified that . he • and other officers caught appellant Rice with twenty- gallons of whiskey in a Ford car, several years before thii ocCurrence. , • The testimony in the case was sufficient to warrant. the verdict of *conviction, but we are of the opinion that' the 'court erred in admitting testimony concerning appellants • having whiskey in their possession several . years ' before the occurrence under investigation. The court,. in admitting the testimony, recognized the rule of law on the subject to the effect that proof of illegal acts in the manufacture, sale or transportation of liquor 'at other times and places than the time and place of the corn-mission of the offense under investigation Must relate' tO acts not too remote. But we think that the court failed, to give proper application to that rule, for the evidence. in . this case related to act§ several years prior to the commission of the offenses for which appellants were convicted. We have had many cases on this point,. which" are reviewed in the more recent ones of Noyes v. StatE,' 161 Ark. 340 ; McMillar v. State, 162 Ark. 45, and 'Mel-ton v. State, 165 Ark. 448, but in all the cases where we declared such testimony to be competent it related to acts which were close enough to the principal act involved in the investigation to treat the conduct as being so continuous as to throw .light on the charge under investigation. In the present case there was no testiniony tending to show illegal acts on the part of either of the accused between the acts involvea in the present charge and those which the officers testified occurred several years prior thereto. It may often be a matter of discretion with the trial court to determine how close the acts must be in point of time to justify the admission of proof of distinct illegal acts of the kind under investigation, but, where there is an intermission of a year or two, it is clear that
70 [171 prior acts can have no bearing on the question under investigation as to the guilt or innocence of the accused. . It is-the contention of the Attorney General that the error of the court is harmless for the reason that each of the accused admitted the truth of the testimony of the officers concerning their prior acts, but these admissions did not render harmless the testimony previously introduced by the State. It was_ competent for the State to cross-examine the accused concerning prior unlawful or immoral conduct, regardless of time, for the purpose of testing their credibility, but this did not render harniless the error of the court in.allowing the State to introduce independent testimony on the subject and to allow the' jurors.to consider the same for the purpose of determining the guilt or innocence of appellants of the crime charged in the indictment. If the jury had accepted the testimony of appellants, they would have exonerated them of the charge in the indictment, for they testified that they had nothing to do with the still found in the house by the officers, that they went out to the place to see Seymore on business, and did not go inside the house at all. If the jury had believed aivellants, they would have acquitted them, and the jury may . have been influenced by the improper testimony. referred to . above. -Reversed, and remanded for a new trial.
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