720 MORRISON V. STATE. [191 • MORRISON V. STATE. Crim. 3934 Opinion delivered September 23, 1935. LOTTERIES—SELLING TICKETS.—Evidence held sufficient to sustain a conviction of selling lottery tickets, under Crawford & Moses' Digest, § 2668. 2. CRIMINAL LAW—VOLUNTARY CONFESSIONS.—Testimony of the mayor and a detective that the defendants appeared before them and made statements admitting their guilt held admissible where it appears that the statements were made voluntarily. 3. CRIMINAL LAW—ADMISSIBILITY OF CONFESSION . — Declarations of an accused against his interest are competent, and it is not required that it be first shown that the declarations were freely and voluntarily made. 4. WITNEssEs—IMPEACHMENT.--Ordinarily it is not proper to ask a witness on cross-examination whether he has been arrested for commission of a érime. 5. CRIMINAL LAW—HARMLESS ERROR.—In a prosecution for disposing of lottery tickets, the ruling of the court requiring defendant, when testifying, to 'answer how many times he had been arrested held not reversible error, where the witness explained that his • previous arrests had no relation to the offense charged and the cases were dismissed without a trial. Appeal from Pulaski Circuit .Contt, First Division ; Abner McGehee, Judge ; affirmed. . Lawrence Morrison and Sam Neely were convicted -of selling lottery tickets, and have appealed. Jack M. Bowman; _0. D. Lôngstreth and John B. Thompson, for appellants. Carl E. Bailey, Attorney General, and . Gu . y E. Wil- hams, Assistant, for appellee. SMITH, J. Appellants were convicted of violating § 2668, Crawford & Moses' Digest, and have appealed. This section of the statute provides that any person who, shall sell, vend, or otherwise dispose of any lottery ticket, gift concert ticket, or like device, shall, on conviation thereof, be fined in any sum not less than fifty dollars nor more .than five hundred dollars.
ARR.] MORRISON V. ' STATE. 721 There is-no question about the guilt of appellants if the testimOny of a . former mayor of the city and the chief of detectives of the city police department is to be credited. The chief of detectives testified 'that he kept noticing every afternoon that an automobile loaded 'with negre men drove oVer the Broadway Bridge from the city of Little Rock to- the city of North . Little Rock, and about an hour later the autoniobile would return with • the• same -passengers.' The _witness stepped the car on one of theSe triris, and found that it contained • all the paraphernalia used in the operation Of a lotterY knoWn as the policy racket, except only the balls 'used . ' in draWing the numbers.' 'The' witness described how this' lottery or racket 'was conducted: The witness . arrested- five negro men, and held thein in custody 'until . the following morning, when aPpellant Moirison dalleW and demanded the release Of the men and 'of his *car in 'which the Men were riding when ar-: reSted. HO' stated that these negroes were lottery tickets kir him, arid he demanded their release upon the gronnd that negroes: employed by John Hardiii, who' Was' his • cOinpetiter . in the policy racket, had not been, arrested or 'distnrbed. MOrrison 'Stated to 'the chief' of' detectives tbat if his men were not released he weuld go to • the mayor and . haVe • the chief discharged. • The defendant 'Neely . adinitted fo the *Chief tbat he_ was engaged in selling lottery tickets for his codefendant, Morrison. The • ex-mayer teStified that' Morrison caMe to' hind abont haVing his employees released, and, in the course. of the conversation; stated that'he was being persectited, in that his employeeS' were' arrested' while . thoSe of hi's competitor were not disturbed. • The recital of this testithony dispose's 'of the cOnten tion that the 'evidence was * insufficient to aupport the conviction. It is insisted that the . testimony Of the maYor and chief of detectives shOuld he disregarded, because , nO showing was made that the alleged'confessions *ere free' and voluntary. 'Both Morrison and Neely 'denied.'making any admisSion of -guilt. ;4 ' , . '•
722 MORRISON v. STATE. [191 We think the testimony was competent. If the confessions were .made, they were free and voluntary ; fact, Morrison sought the interview with both the mayor and the chief of detectives. it is, of course, competent to prove the declarations of an accused against his interest, and it is not required that it be , first shown that the declarations wore freely and voluntarily made. In the case of Davis v. State, 182 Ark. 130, 30 S. W. (2d) 830, it was said: "The practice in such cases has been defined in . numerous decisions of this , court. It is to this effect.. When testimony in the nature of a confession is offered, the accused has the right to object to . its admission, upon the ground that the alleged confession was not : voluntarily made, in which event the trial court should hear testimony as . to the circumstances un-- der : which ,the alleged confession was made, and . . should exclude the confession if it was not voluntarily made. It the testimony is conflicting' on that question, :the jury should be told to disregard the alleged confession unless they found that-it was, in fact, voluntarily made; but, if it appeared .to have beed , voluntarily made, to consider if in connection with all the other evidence in the case." . •No suggestion was made, when the testimony as to the admissions was offered, that they were not freely made, and the court was not therefore required to hear testimony on that issue. - It was also said in the DaVis case, supra, that statements in the nature of a confession are not to be excluded for the reason , only that they were made to . an officer having . the accused in custody,, and,. when voluntarily made the officer may testify . what they were. The only question in :the case which gives us any concern is the ruling of the -court -in requiring the defendant, Morrison, when testifying in his own behalf,, to answer how many times he had been arrested. In the case of Kennedy v. Quitui, 166 Ark. 516„ 266 S. W. 462, it was said: "We have frequently and- recently decided that .a . witness cannot be interrogated on his cross T examination for purpose . of impeachment concerning indictments or mere accusations of crime. He
ARK.] MORRISON V. STATE. 723 • may be asked if lie was guilty or Was convicted, but he cannot be asked if he was indicted or accused." (Citing cases.) . . It is therefore, not proper, ordinarily, to ask a witness, on his cross-examination, whether be . has been arrested for the commission Of a crime. Such a question was held, however, not to be error in the case of Smith v. State ; 183 Ark. 100, 34 S. W. (2d) 1083. But in that case home brew, an intoxicating liquor; Was found in • the home of appellant, who denied having made it. The State was attempting to Show that the accnsed was in that business, and that. having .the brew in • his possession was a part of the business in which the , accused was engaged,- and it was there held that it was not incompetent to show that the home Where the liqUor was found had been raided a number of times 'by officers and the accused arrested during these raids. The admission of this testimony in that case, which was introduced to show a course of conduct, must be regarded, however, as an exception to . the general rule that 'a witness should not be asked; on 'his: cross-6xamination, if' he had been accused or arrested. While we think this testimony ,was not competent in the instant case, we do not think its .admission was-error calling for the reversal of the judgment. The witness explained fully that, while he had been twice arrested, neither arrest had any relation to the offense charged in the indictment. He stated that both .arrests were unjust, and that both were dismissed without a trial. His answer to these collateral questions was, of course, conclusive of that inquiry. • There appears . to-have beCn no prejudicial error, and the judgment will therefore be 'affirmed. It is.So.ordered.
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.