536 STANLEY V. STATE. [171 STANLEY V. STATE. • Opinion delivered June 21, 1926. 1. WITNESSES IMPEACHMENT ON. CROSS-EXAMINATION.—In a prosecution for murder, it was error to compel defendant on cross-examination to answer questions as to how many men he had previously shot, since such acts were not necessarily crimes. 2. WITNESSES—IMPEACHMENT ON CROSS-EXAM IN A TIO* T aQ.PQ, including accused, may be impeached on cross-examination by drawing but the fact that they have committed other Crimes and immoralities, but they cannot be asked about a mere accusaion or indictment preferred against them. ' Appeal from Pulaski Circuit Court, First Division; Joh/n W. Wade, Judge; reverSed. - Rogers & Robinson, for appellant.
ARK.] STANLEY V. STATE. 537 H. W. Ap — pl e _ gate, Attorney General, and John L. Carter, AssiStant, for appellee. HUMPEEREYS, J. Aptlellant Was indicted in the cir7 cnit court of Pulaski County, First Division, for the crime of , murder in the second degree by killing TioY Arrington fie was snbsequently tried and convicted of involuntary manslaughter, and was adjudged tO serve a term of eleven Months in the State' Penitentiary . as a, pnnishment therefor, from . which is this appeal. ApPellant seeks to reverse the' judgment :on the sole gionnd that the tri'al court erred in cOmPelling him, over. hiS Objection and eiception, to , answer the following questions propounded by the prosecnting attorney while CroSs-&amining him, to-Wit: . • . : "Q. flow many men did you shoot before that? Q. Tell the jury how , many men yon' shot before that. A. I have' shot two then before this." These questions were asked for the purpose of affeet-ing*the credibility of appellant, upon the theory that his testimony might be discredited or impeached by specific acts eonamitted by him in the past which may have been crime's, but, not . nedessarily so. ThiS cOurt has adopted the rule that witnesses, including the accused, may be impeached on cross-exaMination by drawing out the , fact theY have cominitted other crimes and immoralities .of various kinds. Hollingsworth v. State, 53 Ark.: 387 ; Shinn v. Siate, 150 Ark. 215,; Millen IT. State, 156 Ark. 148 ; Lytle V. State, 163 Ark. 129. Although committed to this liberal rule for impeaching witnesses, including the accused, this court has said that the rule has its limitations, one being that the witness cannot be asked About a mere accusation or an indictment preferred against him for the purpose of attacking his credibility, because a mere accusation or indietnient raises no legal presumption of guilt. Jordan v. State, 165 Ark; 502. We think the same reason should apply to questions touching specific acts of a witness which are not necessarily crimes. A homicide is not necessarily a crime. The killing may have been an accident or entirely justifiable.
538 STANLEY V. STATE. . [171 The court erred in requiring appellant to answer the questions propounded by the prosecuting attorney relative to shooting other men prior to shooting the deceaSed. On account of the error indicated the judgment . is reversed, and the cause is remanded for a new tria • kcCuLLocn, C. J., (dissenting). The question propounded to appellant, while on the witness stand, was in no sense a mere accusation, nor did the answer carry any stich impliCation. The answer was a direct statement .of the fact_ that the witness had theretofore committed bonn-cide—an aCt which might 'or might not involve moral turpitude, according to the circumstances of the incident. Mere proof of the killing of a human being creates a presumption of gUilt of some degree of crime (C. & M. Dig., § 2342) and casts the burden on the accused to show circumstances of mitigation or justification. 'In the present case the appellant should have been allowed, if he requested it, to narrate the . particular circumstances under which he had "shot two men," so as to remove the apparent stain on his character and credibility ;. but it was proper, I think, in the first instance, to Permit the Stale to interrogate the witness concerning his having committed a deed which, unexplained, would constitute a crime. This court held in Bullen v. State, 156 Ark. 148, that, when a defendant in a mUrder case makes . himself a witneSs in his own behalf, he may, on cross-examination, be interrogated as to his commission of other murders. Mr. Justice SMITH concurs in this dissent.
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