1130 RAPRICH V. STATE. [192 RAPRICH V. STATE. Crim. 4006 Opinion delivered October 12, 1936. 1. CRIMINAL LAW—COMPETENCY OF WITNESSES.—Witnes§es who have had an association with accused and opportunities to acquire information about him are competent to testify as to his sanity. Non-expert witnesses must show that , they possess such qualifications as to be of some assistance ; but when that showing is made, • the decision of the trial court will not be reversed, unless it clearly appears to be wrong. 2. CRIMINAL LAW—ARGUMENT OF couNsEL.—Even if. the argument of the prosecuting attorney that it would be unfair to send appellant's associates who had pleaded guilty to the penitentiary and acquit appellant who was financially able to get up . a . defense were error, it was cured by the court's admonition to the jury that there was no evidence in the case as to the . worth of any one, and that they should decide the case Upon the law and the testimony.
ARK.] RAPRICH V. STATE. 1131 3. CRIMINAL LAW—ARGUMENT OF PROSECUTING ATTORNEY.—There was no error in permitting the prosecuting attorney to argue that appellant was not an irresponsible person who had been led into the commission of an act which he did not know was wrong,• Or, knowing that it was wrong, lacked the power to resist, where the testimony showed that he was a high school graduate and had had one year in college, and there was other testimony which furnished some foundation for the argument; and, whether he was irresponsible, was a question for the jury, under the court's admonition that they were to try the Case upon the law and the testimony, and not the argument of either side: Appeal . from Lonoke Circuit Court; W. J. Wag-goner, Judge; affirmed. • Trimble, Trimble & McCrary and Thos. D. Wil-liams, for appellant. -Carl E: Bailey, Attorney General, and Guy E. Wil-liams, Assistant, for appellee. SMITH, J. This appeal is from the judgment of the Lonoke circuit court sentencing appellant to a term in the penitentiary . for the crime of burglary, and the reversal of this judgment is asked upon the grounds that incompetent testimony was admitted, and that the prosecuting attorney waS permitted to . make an improper arid prejudicial argument before the jury. The undisptited testimony shows that during the night of February 16, 1935, appellant and three other young Men broke into a bakery shop in the town of Lonoke, and removed therefrom an iron safe containing something more than $300 in money. Entrance into the building was effected through a skylight. A rope was let doWn into the building, on which one of the young men slid down and opened a rear door. The safe was loaded into an automobile owned, or at least driven, by appellant, and carried some miles out of town and broken open and the contents divided. Appellant and two of his aSsociates left Lonoke about 3 p. m., and returned about 7 p. m. They drove through Lonoke on their return and invited another young man named Burrus to join.their party. After the commission of the crime, in which Bur-rus participated, they droVe , hack to Little Rock, which city they reached about 2 or .3 a. m. Burrus left the car before reaching Little Rock.
1132 RAPRICH V. STATE. [192 • The evidence as to the crime itself consists -largely of • the • narration sof • appellant's confession, • which ' appears to have been , freely made, and shows a''critne in-telli o ently planned: and succeSSfully executed:-,' Appellant's participation *is- not • denied, , and the defense of . inSanity Was'interposed,-'and testirriOny , was Offered'in support of that plea. The.eage under inStrfictions . to which no, objections are:made. • TWo physicians testifying as expertS- eXpresSed the opinion, that appellant . was insane. ,Other-,te . stimony by lay witnesses was given to the same effect. physi-Glans testified on behalf • of , the state as experts. , that appellant was sane, one of these less positively •than.the other. Certain non-expert witnesses ., ,were . permitted to express the opinion that appellant, Was : sane, and, the admission . of this testimony is assigned as , error. ,., The teStimony Of W. J: Beard and , MrS. Toni Morris is.esper cially coni . P . laine , d . of. • • Beard testified that, he was a..justice of tbe peace, and ha • d ,kn • own appellant from his childhood.: The witL pess ant t , '-.)76.1:1 .1 1 WEIS aSKeU : dine nnu and talked with • h im and observed .him . .from .time to tim . e W ? itn " es s , answered that he . had.. :Witness, also teStified that 'be lineW , • appellant in FebruaiY,. , 19S5', , and in his OPirdon apPellant , 'waS • Sane at :that tiine. ,This testi.MOnY Was' admitted without' objectiOn.. • On his . cross; exammation witnesS „ stated :that, appellant WaS.:tiyc'ci.:fti his coiirt for . breaking, MO; the - bakery ; 1 :that aPpellant ata-not testify at that tiMe. ;Appellant h.ad been' in wit-, nesS' hOnse in 19 . 31,'Where he . 444 a. ..cOnvisatiOn; With him. 'Had nO other bonversatiOn With aPpellant, •Init in the capaCity Of 'justice' Of' the peace . 'had , tried 'appel-; laht upon the Charge 'of driving -an OVerloaded . fru*: Ori his , redirect exatnination'WitrieSs_ s teStified ' that. be,ho Seen aPpellant on the ,Streets,'"PasSed . 'him a nUmber ,of timeS." Saw him every'few daYs, 'and kneW hiin like' he did other.young Men in, t oWn. • • • .• . A • m • o • tion t • o • exclud ' e this testim • ony, hpon the .ground that no proper .foundation- had.. been' laid :for its admis, sion, was overruled.
RAp tackn v. STATn.. 11'43 Mrs:, Morris was.,permitted to testify ,that, her ,son was. one,Of . the „yOung men who ,brokOnto ;the bakery, 4nd , , that ,appellant., ha d , twice come . ' to . her ..houSe just before; the, burglary looking :for : her , son,. The first occa', sion: . was about a..week before the burglary, the second about two days before that event. ,She.'had Inown.appellant alL ;of his . life, •and had . seen..hini frequently. She testified, lin part,. as follows Mrs.: Morris, have you ever: had s conversations; with ; him ? s A. Not exactly. Q. But you, say that .he has been to your:house? .:A:•Yes, sir ..Q..Have.you ever, heard ;him stalk ,to other peoplesP? A. Yes, , „Q. I-Tow ten-. A. I:,have,.kno.wti knew bim l when he . was a sch . 00l, boy, ,and, I have seen him and heard him talk. Q. .-Ni T hen he came up to your house a :few, 'days before' this robbery took , .place, ,did:you talk to hini on, hoth .: occasions ? A. ,Yes, Q. Did he talk like,a razy . personY .4.. No: : Q. Did . he .talk.like anY other persOnrwould? A., Yes, sir.. , Q,,.Did he talk .like he ,was , an insa-a , c,p . erson :A. No, sir. . Q . Do you: :tell the juiy:.that in your. opinion he knows . right 'from, wrOn o -?:, A: Yes sir. Q ' . D o you think that he. kneW was , wrong to commit, a: robbery 7, A. yes,. Sir s . ". pmiciusion.of the clirect examination appel, counsel , moved to exclude , the testimony , of, Mrs. Morris ' uPon the, ground that she ha . d not .sutlicientiY qualified herself to bepermitted to express,. an .opinion: Vpon , her cross-examination she testified as , follows : "Q. To ..what extent ; 4icryou, talk .to him on. these two occasiOns?He : asked me, : where , Floyd: was,, and . I told , him ,he , had , goae. to Little . Rock, and he . said .to .when , he : eathe back, he wanted to see him. Q. ATi ' T as that 'the ,extent of your conversation and iS that all the conversation„ you ; have , had, with him during ; ;his, life? A.:Yes. Q. 'Did you, ever see On the street hare-headed . and bdrefooted , ,A.: No, sir. Q., You don 't lnow anything:about, ,his 0 . ripkingAuor or anything:like thatj A. No,- siy. Q.: He.snever has: been in your home? -, A. Ile has bean there a few times. Q. And the eXtent Of, your acquaintanceship with him, is the time he , was theye ;to see your, son, Floyd, and : that was , the, extent , . of : your cop, versation with him?. A., Yes, sir, but J , have heard:him
1134 . RAPRICH V. STATE. [192 talk to other people. • Q. To whom? A. I don't remember—but 1 have heard him talking 'on the street. Q. .Did you ever , hear what • he..said to other ;lieople? A. I . never heard him say anything 'that : sounded like 'he was crazy. •Q. Were'you paying a:iv particular attention to him? . • A. No, sir." • • • • This insisted that it , was *error : to perinit theSe witnesses to expresb an opinion-as-to' appellant's' sanity, for the reason that they' were • not shown : to' have .had sufficient opportunity to . fortn an' intelligent and rational opinion upon that subjeCt, and this appears' to -be the most :serious questien presented 'on this • appeal.:-.'• • The note of 'the annotator in: the'eabe . 'Of: State' v: Schneide'r,. 72 A. L...11: 579, *deals' very 'extensiVely 'With the conditi'ens tinder which `a 'non-eXpert : *ROSS' 'inay be perMitted to express ah oPinion as te'another's Sanity. We do not 'cite' Or reVie* any of thebe cases,' ,AS 'We have many cases ef' our own on the subject. ' TheAate case Of ' Spence' v. : State, 184 Ark. 139; 40 S: . W. : (2d):986, cites a 'number of these cases' . and, athong 'others', the case of • Shaeffe r v. State, 61- Ark: .241, 3 9' S. W. 6791 It is very 'earnestly, insisted' that *the tebtiinohy 'in the instant case iS Suffi.Ciently Shaeffer case to 136 controlled hy it and' to regUire 'the 'reYeral Of the judgment in the; instant Case -aS Was orderedin' the Shaeffer 'Case. • , -, In'annenneing the test for the' adrhis-' Sien of .• the opinion of holFexpertb . 'judge ''HATti, ' said that 'such WitnesS, must , recite' the facts . upOri whiCh the opinion' is based,' and the . ' testimonY must shoW 'Such relations to have existed betweenthe party 'alleged' to • be insane and the V■iitness: as fairly to lead tothe.ConelUSibri that the wanes§ 'has .' a reasenable foundation upon whiCh to 'babe the Opinion . ; and that' whether the . information is sufficient for that PhipeSe 'is a.' prellininary . cfaestien for the . court to , decide affirniatiVely . hefOre Snell' testimony may' be admitted 'at all, 'and . after ifs admisSien the 'Weight to be .given such 'testimony is a cfuestiOn'fOr the jury te decide. - . . It' is* very earnestly insibted' that there ib the same lack , of foundation for the' adinission of the testiniony of the' non-experts' as existed . in the Shaeffer Case, and
ARK.] RAPRICH V. STATE. 1135 ' that the judgment in the instant 'case must be reversed as was ,donO.in .the Shaeffer case. . . • • . . We think; however, that. the cases are distinguishable on the facts. The opinion in the Shaeffer case sets out the testimony of the non-experts, and points . out the lack..of foundation for the admission of their opinions. The. witnesses there were J. L. Moore and B. C. Black, and their testimony i§ there recited as follows :• "Moore testified a follows : 'I have known the defendant for five or six . years. I have never had him working around me. From what I . have seen of him during that time and observed, I don't think there . is anything wrong. with hiin.' • Black said : • 'T have seen :the defendant on the street. for several years. I never noticed .anything peculiar about him: From what I have seen of him, I never thought but that he was all right !' " , • be observed that neither of these witnesses had ever had any conversation or association with the accused. They had . known him five or six years, •and'had merely seen him on the streets. • Here, the-witnesses, Mrs. MorriS , and Beard; had better ,opportnnities to observe the adansed. Beard had known hith all his life. Appellant had twice appeared as a defendant in Beard's court. WitnesS had a conVersation with appellant in witness' borne; and had thereafter 'seen him "pretty often." Mr§. Morris , had alsO knolVn appellant all his life. , He was the associate of her son. She had conversed with appellant Nice within a week of the burglary. Appellant had a mission which he sought to perform,.and in furtherance ,of it he. asked an appointment, which .was evidently later made .and kept.- The witnesses in the instant case,, therefore; had an association' with the accused and opportunities to acquire information, abOut him 'which were totally absent in the , Shaeffer . mase. • • While the testimony is not entirely satisfactory; we are unable to say that the trial court abused the discretion he was :required to. exercise paSsing upon the preliminary ,question of the coMpetency of the testimony. The same learned judge who wrote the opinion in the Shaeffer case-also -wrote the opinion in the case of Green v. State,. 64 Ark.. 523;43 S. W. 973. Involved in
1136 RAPRICH v. STATE. [192 that 'case was the . question .Of the competency . of 'an' ex:. pert to express an opinion as -to the . sanity : of: the accused:• 'Judge BATTLE there :said: • "No 'rule can ;be laid down by ' : which it • can be accurately determined how much skill; 'knowledge, or experience, a witneSs must possess to-qualify and:entitle him . to . testify as:.an expert -He must af reast 'have sufficient to enable 'him .. to .1:1P some assistance: . 'That 'questioir, however; rests Within 'the fair diScretiOn of . the court, •Whose :duty it is to :de.- cide whether • the 'experience 'or study. of the witness has been thich as • to; Make;his • opiniom of any value..! (cirCuit court 's)'deeision -of the qUetion• will not be revieWed by this cotirt, unless it ;clearly appears :to be, wrong.'?.:; The *same ;rule would, of course,' be applied in passing 'upoir the action of the' trial' Court ;in. admitting the testimony of a' iiori-eXpert witness,. .Such witness must show- that .. he' possesses . suck' qualifications: as to. be of some i assistanCe, and . wheli; that ;showing , is . made ; the dediSion .of: the:trial. court will; not be .reversed unless. it .clearly appears to be•wrong: . , . • ... • • . , • the Shaeffer case, supra, there , ! was," an.e ire.lack Of such showing On the,.part of, the,nort-expert witnesses,; but :not : so. here.: : - , -:•.. See also . Jackson ; v: Stat: 142, Ark. 96, 218 S.; ;W. .369 ; Woodall v. State, 149, •Ark. • 33,, 231 ; S: W.186 ; Griffin v. Uttion:Tritst : Co.;'166 Ark. .347., 266 S., W., 289. , • , In SmOot on;:insanity 597)•,; in discussing the questioii. Of, 'the 'coMpetencY of :non-experts;• it • is said: "JUst; what : 'ainount ;of ;knowledge :and aCquaintanee is • neceSsa fo*'qualiO . such.'a witness is largelY goVerned by , the factS''of each , 'ease; and Withitt the' :soUnd discre-tiOii the' trial judge, vs ; ho' May;'declare the witness .in-donwetent where q he •prelithinary2examinatien shows the facts are insufficient to qualify the-witness to express -an opinion. — But. where such 'witness . • show§ any redsbnable opp6rtunity : to 'acquire kriowledge , Of the subjecUs san- ity through observation •• and- asSoCiation, and 'is able to state anY facts 'upon which • to' predicate . an opinion, the meagerness •'of such fads gees', rat•her to the weight to be •given ' the opihron than' to 'its . admissibility ; and the 'formed . atthe tiine', with . the 'facts . upon ,which
ARK.] RAPRICH V. STATE. 1137 it. is ' based, .should go .to the jury , tor whatit. is :worth. The• weight to be given to: such testimony is.exclusively within the:province of the jury, .if the facts,npon .which the.opinion is founded themselves tend : to :show sanity, or insanity.'!....See also' vol. II, .Wharton's Criminal-Evidence,. (11th ed,) ,p:'1746. • • . . • '• • • : In his concluding argument 'the prosecuting lattor-ney Commented upon the fact that appellant's three . as--sociateS 'had . entered 'pleas; of guilty. and •hall been sentenced to the penitentiary and stated that "It would. not be fair . te send 'those bOys ,to.. the penitentiary and..to acquit' appellant •. • .•• 'Upon. . this isubjeOt the prosecuting attorney,*said.: "Gentlemen; •ou.. only . .haveYsuch. law and order sin; your county. as iS brought' .abont •by the. enforcement . Of: the laws, and if the jury .goes ont .and: .turns.a fellow. loose 'who -is . financially able te get: up a defense and the 'other 'fellow who . :has no :money iS . sent . to* the -penitentiary .Upon objection being, .rnade to the .argument-.by counsel for appellant the courtsaid,: , Gentlemen of ,the jury, the financial standing of . a defendant .has.nothing to do• with the law: If . a. man is:rich or poor. if he . viq-bites the law,,then he : should' be punished. And , if . he.is a's poor as Lazarus.he .should be protected: if he is . not guilty. The jury. will be goyerned only :by the testimOny. What the counsel say has nothing to do with the. Appellant's counsel objected that' "There is,no evidence here. Showing ; the finanCial ability, in any degrec, .of any. one.". ,,.• • This Objection was sustained; and . the -court. said : "Gentlethen, of thesjuryrthere is :no evidence:in this' case 'as to the .worth of anyi.one connected with :it.' Eich 9.r poor. you .are , entitled:tb the same protection, at the. hands .of .the court, as - stated to; you 'before; 'you have' .been chosen. to try: *this: case* on.. the laws sand the: testimony, -and. no other eanse .shoUld guide-you in your deliberations. !'• Decide, this 'case upeu thedaw and tbe testimony and let your verdict 'be . : accordingly." •Conceding this .argament. to . be improper, the error, •if.any, waS • cured by 'the. admonition of. the.court.
1138 RAPRICH V. STATE. [192 Answering what appears to have been the argument of the counsel for appellant, that appellant, through his mental condition, lacked the power to resist the commission of a wrongful act; the prosecuting attorney said: "Look at this defendant ! -This boy has had the advantages of a good education'; he graduated from high school and had a year in college—but look at these other poor boys he led into this crime—they didn't have the fine opportunities that this boy had—they didn't know how to resist wrong like tbis 'defendant did; they never had the chance this boy had! And yet, with all his chances and education, he came back home from col, lege and got three ignorant boys into all of this trouble, and then after they have b'een sent to the State penitentiary and are now serving their time, this boy comes in here ' and tells you that he ought not to • be sent down there to serve his just time,—because he 'was suffering from an 'irresistible impulse' and not a witness * *." The objection was made to this argument that "There is no such testimony showing that this defendant got any one into trouble." . • The court said : "An attorney has a right to express his opinion to the jury, arid he has a reasonable range to express his said 'opinion on what might have happened—but your verdict, gentlemen of the jury,. will be based upon the law and the evidence, and not the argument of counsel." • The prosecuting attorney 'proceeded to say : " The-evidence in this case, gentlemen of the jury, bears out the statement I have just made to you. Two witnesses have just .testified from the s . tand here today—Mrs. Morris testified that he was at her house tWice, one time about a week before the robbery, and the second time about two days before it, after her boy Floyd Morris. Another gentleman took the stand, Mr. Lilly, and stated that on the day before and the day after the robbery Raprich was out to Burris' home ; that he got him the day before the robbery and brought him home the day after the crime was committed. Now that shows that he was running after these boys and these boys were not leading him. Who said he couldn't resist it? Gentleinen, it Was
Auk.] 1139 the other boys who couldn't resist, not him ! Yes, here we have a boy who finished high school with the highest honors, .whO won the State contest in Latin, who had a year in college—and he comes down here and leads these poor ignorant boys astray, and he thinks he can come in here and * * *." Upon objection being made to the continuance of this argument the court said: "The prosecuting attorney' can express opinion in his argument but his . opinion is not the law in the case. nor the evidence. You mug decide this case upon the law and the testimony and not the argument on either side." It wais mit improper for the prosecuting attorney to argue that appellant was not an irresponsible person who had been led into the commission of an act which . he did not know was wrong, or, knowing that it was wrong, lacked the poWer to . resist. The testimony. reviewed by the prosecuting . attorney furnished some foundation for the argument that appellant was not an irresponsible perSon who lacked the capacity to resist the solicitation of others to commit what would be a crime, if done by a sane person, and the court properly ruled this was a question for the jury. We conclude, therefore, there was no error in this respect. Considered in its entirety, we find no error in the record, and the judgment must be affirmed, and 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.