Leonard v. State

153 S.W. 590, 106 Ark. 449, 1913 Ark. LEXIS 225

• Court: Supreme Court of Arkansas
• Decided: February 3, 1913
• Status: Published

Opinion

Wood, J.,

(after stating the facts). The appellant and Pearl Gilbert sustained to each other a relation in the house like that of husband and wife. She lived in the house with him, performing the ordinary duties of washing, cooking and housekeeping like a wife would in many cases perform. She slept in the same room with him, and necessarily must have eaten at the same table. Appellant was divorced and had no wife in the house with him. The evidence, we think, fully warranted the jury in finding that the offense of illegal cohabitation, as defined by the statute and construed by the court, was committed by appellant. Kirby’s Digest, section 1810; Lyerly v. State, 36 Ark. 39; Taylor v. State, 36 Ark. 84;. Bush v. State, 37 Ark. 215; Turney v. State, 60 Ark. 261.

It is never in good taste for a prosecuting officer to personate the defendant on trial. When the prosecuting attorney does this, he generally subjects himself to the criticism of having indulged in personal villification of one who is in the custody of the law and helpless to resent or to defend himself against what he may consider or possibly know to be unwarranted and unjust personal insult and abuse from one who is for the time being clothed with official authority. But it may, and often does, become necessary for the prosecuting attorney to properly criticise the acts and conduct of the accused in language shown to be justified by the evidence. When such is the case the prosecuting attorney should always make his remarks impersonal and should describe or characterize the acts which the evidence tends to prove rather than to engage in personal criticism of the defendant himself.

But we are of the opinion that the remarks of the prosecuting attorney, in this case, while of a personal character, were not prejudicial for the reason that the evidence tended strongly to prove that the accused was guilty of conduct which, in fact, rendered him a vile character and a whore-monger. The testimony on behalf of the State tended to prove that he commenced having sexual intercourse with the young girl, Pearl Gilbert, before she was fifteen years of age, which, under the law, was carnal abuse and a penitentiary offense; and that he had other women frequently staying there in the house with him. So, the testimony altogether justified the characterization of his conduct as that of a vile character and a whore-monger, and under the circumstances it was not prejudicial.

The prosecuting attorney was permitted, over the objection of defendant, to ask defendant, on cross examination, “if, on one occasion, you and another fellow didn’t just trade wives?” The defendant answered no, that he “never heard of that before.” The question was not improper. It was relevant on the issue of the credibility of the witness, and, besides, being answered in the negative, could not have prejudiced the rights of the appellant.

The judgment is affirmed.