Fakes v. State

Wood, J., (after stating the facts). 1. There was evidence to sustain the verdict. 2. The court erred in permitting the attorneys to argue, on behalf of the State, that the testimony of the witnesses, Jones and George, tended to corroborate the testimony of the prosecutrix. The prosecutrix testified that appellant had sexual intercourse with her. The testimony of J ones and George did not tend to corroborate the prosecutrix. As to whether or not appellant said that his wife was jealous of the prosecutrix, Birdie Honnell, was a matter wholly irrelevant to the issue being tried. The testimony was wholly incompetent for any purpose, and if the appellant had objected to its introduction the court should have excluded it. The appellant did not object, however, to the introduction of the testimony for the purpose of impeachment, and he would not be in an attitude to complain if the court had limited its consideration to that purpose. But the appellant, in his seventh prayer for instruction, did request the court to tell the jury that the testimony of the above witnesses should not be considered as tending to establish the guilt of the defendant, and requested the court to limit its consideration to the impeachment of appellant. The appellant did not make his objection to the argument, nor his prayer for instruction in regard to the testimony of these witnesses, as strong as the law warranted, but his objection to the testimony was specific enough to direct the court’s attention to its prejudicial character, and therefore the court should have sustained his objection to the argument, and should have granted the prayer at least to the extent asked by appellant. Appellant should not be deprived of the benefit of the rule of law which does not permit irrelevant and incompetent evidence for any purpose because he was willing that it might be considered for the one purpose of impeachment. Because appellant conceded more than he was bound under the law to concede is no reason why he should be deprived of the rule of evidence to which he was entitled. A general objection is sufficient to raise the issue of the relevancy and competency of testimony. Vaughan v. State, 58 Ark. 353-373. As the testimony here was wholly irrelevant and incompetent, the court should not have permitted its consideration for any purpose to which appellant was not consenting. See Clardy v. State, 96 Ark. 52-57. Appellant objected to other rulings of the court on prayer for instructions which we deem it unnecessary to review, for the reason that the errors complained of relate to mere verbiage, iand no specific objections were made to these prayers. They will doubtless be corrected on another trial. We find no prejudicial error in the rulings of the court except as above mentioned, but for this the' judgment must be reversed and the cause remanded for a new trial.