Queary v. State

Conley Byrd, Justice. Appellant Eddie L. Queary was convicted, upon a jury verdict, of burglary and grand larceny. For reversal he makes a number of contentions. The record shows that the residence of Mr. Phillip Cain of Kingston, Arkansas, was broken into and that items totaling approximately $300 in value were removed. Upon investigation the officers found two sets of tracks leading from and to the residence of appellant to the Cain residence. The boots that appellant was wearing matched one set of the tracks found by the officers. Lowery Garten, who was living with appellant, pleaded guilty to entering Cain’s residence and taking the property. Garten also showed the sheriff where he had stored the property. We find that there was substantial evidence to support the jury’s verdict. During cross-examination of Sheriff Ralph Baker the following occurred: “Q. Okay. Now, other than those two dollars, to your knowledge, Queary — Eddie Queary hadn’t had possession of all of this stuff; is that right? To your actual knowledge? Have you actually seen him with it? A. Seen him with this stuff here? Q. Yes, sir. A. No, sir. Q. Did you ever go into the attic and get it? A. No, sir. It was his partner there, Garten. MR. BOYD: Your Honor, I know probably nothing was intended, but we’d like to instruct the jury or that the Court do so, that the term ‘partner’ should be stricken from their minds. THE COURT: Overruled.” The law is that when a witness, in answer to a proper question, gives a nonresponsive answer stating matter that is incompetent and inadmissible as evidence, the trial court, on motion, should strike out the answer or so much of it as is improper, and direct the jury to disregard it as evidence in the case. See Page v. State, 88 Ark. 237, 114 S.W. 248 (1908), 58 Am. Jur. Witnesses § 575 (1948) and 98 C.J.S. Witnesses § 356 (1957). The State, in recognition of the law on the subject, acknowledges that the sheriff’s reference to appellant as Mr. Garten’s “partner” was improper but contends that it was harmless error. We cannot agree that this reference to appellant was harmless error. Under our law, an error in the admission of incompetent testimony is presumed to be prejudicial in the absence of an affirmative showing to the contrary, Connelly v. State, 232 Ark. 297, 335 S.W. 2d 723 (1960). Since the only practical, factual issue before the jury was whether appellant was Mr. Garten’s partner in the crime, we cannot say that the record affirmatively shows the sheriff’s characterization of appellant as Garten’s partner was not prejudicial. Appellant raises a number of other issues, but since they are not apt to arise on a new trial in the same context, we need not consider them. For the error indicated, the judgment is reversed and remanded. George Rose Smith, Fogleman and Jones, JJ., dissent.