Jim Johnson, Associate Justice.
Tbe appellant, Virginia Rand, was charged with the crime of second degree murder for the killing o f Harry V. (Buddy) Clark. Following trial in the Benton Circuit Court, the jury found appellant guilty and fixed her punishment at 8 years in the state penitentiary. From such verdict comes this appeal.
It appears from the record that on the evening of August 8, 1959, the deceased, Clark, and his wife entertained Mr. and Mrs. Sam Davis in their home. At about 1:15 a.m. on August 9, Mr. and Mrs. Davis left the Clark home and at the same time Clark left in his car to check the receipts at the Horseshoe Grill, a cafe which he owned located some 8 blocks from the Clark home in Rogers. Although the evidence is somewhat uncertain, it is clear that Clark finished his work at the cafe and at 1:30 a.m. the night police radio operator received a call from a woman identifying herself as appellant who said: “Send someone out here, I have had some trouble.” After the radio operator sent a patrolman to the Rand home, the appellant called again and said: “I have shot a man. I shot Buddy Clark. ” Upon arrival at the Rand home, the patrolman was told by appellant that she shot Clark in her bedroom. The patrolman immediately went to the hospital where he found Clark on the floor in the hall. Nurses at the hospital testified that Clark came in the front door and fell to the floor. The records show he was admitted at 1:45 a.m. He expired at 4:17 a.m. that same morning.
The patrolman testified he found tracks in the heavy dew going in and out of the Rand house and found a gun about 4 to 6 feet from these tracks. There were two bullet holes in the bedroom walls and 5 empty cartridges were found in the bedroom. The deceased was shot 4 times — 3 times in the chest and one time in the right arm. No trace of blood was found in or around the Rand house but there was blood on the steering wheel and door of Clark’s automobile.
The motion for a new trial contained 66 assignments of error which we have examined in detail. The evidence related above, standing uncontradicted and unexplained, was sufficient to justify a conviction. Ark. Stats. § 41-2246. The killing was admitted by defendant, and the use of a deadly weapon, capable of producing death was admitted. We have repeatedly held that malice, and intent to kill, may be implied from the use of weapons capable of producing death. Specific intent to take a life is not an essential element of the crime of murder in the second degree. See: Wooten v. State, 220 Ark. 750, 249 S. W. 2d 964, and cases cited therein.
A great deal of testimony was introduced by the State tending to show that there had existed for several years an extramarital relationship between appellant and deceased. The admissibility of this testimony is drawn in question. Without detailing the testimony of each particular witness, let it suffice to say that the evidence wherein witnesses testified about seeing appellant and Clark together, including testimony of one following the other in automobiles, and the testimony establishing that Mrs. Band called or contacted Clark, was entirely admissible.
On the other hand, the testimony of anonymous telephone calls was entirely inadmissible, as was certain evidence that strongly implied, though entirely speculative, that the two were having rendezvous. For instance, Eldon Maxey, a resident of Springdale, testified that he did not know Mrs. Band or Clark, but that he had seen a man driving an old car and a woman driving an Oldsmobile, park in the parking lot in Springdale. Maxey stated that he rather thought the old car was a Ford, though he was unacquainted with the model. From his testimony:
“Q. It just come down like Fords do?
A. Yes. . . .
Q. Do you know whether or not that’s the type, the model from 1941 to ’48?
A. Yeah, it was a later car than a ’48, a ’38.
Q. I said a ’48?
A. You said a ’48?
Q. Was it between a ’41 and a ’48, or do you know?
A. No, I don’t ... I don’t remember. . . .”
# * #
“Q. A black car? How many such occasions did you observe that?
A. Just one time I reported.”
The witness testified that he saw this couple get in the old car and drive west to the Legion Hut. “They was putting something up over the glasses so I reported to the police, to Herman McCullough.” Herman McCullough testified that he was acquainted with Mrs. Band, and following Maxey’s report, investigated, and saw Mrs. Rand in the Ford with some man. Neither of the witnesses identified Clark as being present at any time.
The court admitted into evidence two unsigned letters directed to Mrs. Clark, and three unsigned cards directed to acquaintances of Mrs. Clark. No proof was offered that these communications were sent by the defendant, though the contents of each clearly implied that they had been written by one having an affair with Mr. Clark. Mrs. Clark testified that after receiving these letters she almost had a nervous breakdown and went to Barnes Hospital to “find out what was wrong with me.” This evidence relating to the letters was entirely inadmissible but further discussion of the contents is not required because the court subsequently withdrew these letters and cards from the consideration of the jury. One of the letters was very critical of personal items in the house, including the bedroom, and advised Mrs. Clark that “. . . I left a lipstick for you under the west end of the settee cushion.” Mrs. Clark subsequently testified that she found a lipstick in that location, and this lipstick was offered in evidence at the trial. Yelda Hudspeth, a close friend of Mrs. Clark, testified that the latter showed her the lipstick, and that on an occasion when appellant had visited in the witness ’ home, she observed Mrs. Rand’s lipstick, and there was some similarity. From the evidence:
“Q. What was the similarity?
A. The lipstick was worn in the center.
Q. The one that she had?”
# # #
“Q. Now, you’re testifying to this jury that Mrs. Rand had a lipstick and it was worn somewhat like that; is that correct?
A. Yes.
Q. Did you ever see any other lipsticks worn like that?
A. I never, noticed another woman wearing it like that.
Q. You never noticed another woman wearing it like that? And that’s what you go on in your testimony here; what you base your testimony on here is that you saw lipstick similarly worn like that?
A. Yes.”
# * *
“Q.
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Jim Johnson, Associate Justice.
Tbe appellant, Virginia Rand, was charged with the crime of second degree murder for the killing o f Harry V. (Buddy) Clark. Following trial in the Benton Circuit Court, the jury found appellant guilty and fixed her punishment at 8 years in the state penitentiary. From such verdict comes this appeal.
It appears from the record that on the evening of August 8, 1959, the deceased, Clark, and his wife entertained Mr. and Mrs. Sam Davis in their home. At about 1:15 a.m. on August 9, Mr. and Mrs. Davis left the Clark home and at the same time Clark left in his car to check the receipts at the Horseshoe Grill, a cafe which he owned located some 8 blocks from the Clark home in Rogers. Although the evidence is somewhat uncertain, it is clear that Clark finished his work at the cafe and at 1:30 a.m. the night police radio operator received a call from a woman identifying herself as appellant who said: “Send someone out here, I have had some trouble.” After the radio operator sent a patrolman to the Rand home, the appellant called again and said: “I have shot a man. I shot Buddy Clark. ” Upon arrival at the Rand home, the patrolman was told by appellant that she shot Clark in her bedroom. The patrolman immediately went to the hospital where he found Clark on the floor in the hall. Nurses at the hospital testified that Clark came in the front door and fell to the floor. The records show he was admitted at 1:45 a.m. He expired at 4:17 a.m. that same morning.
The patrolman testified he found tracks in the heavy dew going in and out of the Rand house and found a gun about 4 to 6 feet from these tracks. There were two bullet holes in the bedroom walls and 5 empty cartridges were found in the bedroom. The deceased was shot 4 times — 3 times in the chest and one time in the right arm. No trace of blood was found in or around the Rand house but there was blood on the steering wheel and door of Clark’s automobile.
The motion for a new trial contained 66 assignments of error which we have examined in detail. The evidence related above, standing uncontradicted and unexplained, was sufficient to justify a conviction. Ark. Stats. § 41-2246. The killing was admitted by defendant, and the use of a deadly weapon, capable of producing death was admitted. We have repeatedly held that malice, and intent to kill, may be implied from the use of weapons capable of producing death. Specific intent to take a life is not an essential element of the crime of murder in the second degree. See: Wooten v. State, 220 Ark. 750, 249 S. W. 2d 964, and cases cited therein.
A great deal of testimony was introduced by the State tending to show that there had existed for several years an extramarital relationship between appellant and deceased. The admissibility of this testimony is drawn in question. Without detailing the testimony of each particular witness, let it suffice to say that the evidence wherein witnesses testified about seeing appellant and Clark together, including testimony of one following the other in automobiles, and the testimony establishing that Mrs. Band called or contacted Clark, was entirely admissible.
On the other hand, the testimony of anonymous telephone calls was entirely inadmissible, as was certain evidence that strongly implied, though entirely speculative, that the two were having rendezvous. For instance, Eldon Maxey, a resident of Springdale, testified that he did not know Mrs. Band or Clark, but that he had seen a man driving an old car and a woman driving an Oldsmobile, park in the parking lot in Springdale. Maxey stated that he rather thought the old car was a Ford, though he was unacquainted with the model. From his testimony:
“Q. It just come down like Fords do?
A. Yes. . . .
Q. Do you know whether or not that’s the type, the model from 1941 to ’48?
A. Yeah, it was a later car than a ’48, a ’38.
Q. I said a ’48?
A. You said a ’48?
Q. Was it between a ’41 and a ’48, or do you know?
A. No, I don’t ... I don’t remember. . . .”
# * #
“Q. A black car? How many such occasions did you observe that?
A. Just one time I reported.”
The witness testified that he saw this couple get in the old car and drive west to the Legion Hut. “They was putting something up over the glasses so I reported to the police, to Herman McCullough.” Herman McCullough testified that he was acquainted with Mrs. Band, and following Maxey’s report, investigated, and saw Mrs. Rand in the Ford with some man. Neither of the witnesses identified Clark as being present at any time.
The court admitted into evidence two unsigned letters directed to Mrs. Clark, and three unsigned cards directed to acquaintances of Mrs. Clark. No proof was offered that these communications were sent by the defendant, though the contents of each clearly implied that they had been written by one having an affair with Mr. Clark. Mrs. Clark testified that after receiving these letters she almost had a nervous breakdown and went to Barnes Hospital to “find out what was wrong with me.” This evidence relating to the letters was entirely inadmissible but further discussion of the contents is not required because the court subsequently withdrew these letters and cards from the consideration of the jury. One of the letters was very critical of personal items in the house, including the bedroom, and advised Mrs. Clark that “. . . I left a lipstick for you under the west end of the settee cushion.” Mrs. Clark subsequently testified that she found a lipstick in that location, and this lipstick was offered in evidence at the trial. Yelda Hudspeth, a close friend of Mrs. Clark, testified that the latter showed her the lipstick, and that on an occasion when appellant had visited in the witness ’ home, she observed Mrs. Rand’s lipstick, and there was some similarity. From the evidence:
“Q. What was the similarity?
A. The lipstick was worn in the center.
Q. The one that she had?”
# # #
“Q. Now, you’re testifying to this jury that Mrs. Rand had a lipstick and it was worn somewhat like that; is that correct?
A. Yes.
Q. Did you ever see any other lipsticks worn like that?
A. I never, noticed another woman wearing it like that.
Q. You never noticed another woman wearing it like that? And that’s what you go on in your testimony here; what you base your testimony on here is that you saw lipstick similarly worn like that?
A. Yes.”
# * *
“Q. Do women have a particular manner in which they apply lipstick which leaves a particular impression on — wears it a certain way on the stick?
A. I think so.
Q. How many lipsticks have you examined, Mrs. Hudspeth?
A. At the time, since I was interested, I watched other people’s lipsticks to see if they were worn differently.
Q. I’m asking you at that time how many lipsticks had you examined?
A. I didn’t examine any.
Q. You hadn’t examined any at that time, had you?
A. I’d looked at them. I looked at them when I saw other women take them out. I was interested.”
This is a remarkable hit of evidence. With the thousands of women in this state who use lipsticks, it would certainly appear that more than one would have a lipstick “worn in the center.” Be that as it may, the witness was not testifying about an examination of a lipstick in the possession of Mrs. Rand; rather she was testifying about a lipstick which Mrs. Clark said she found in a location suggested to her by an anonymous letter (which, in itself, was inadmissible). All of this evidence relating to the lipstick was incompetent for the reasons herein mentioned.
In addition to this testimony, a large volume of evidence was introduced by the State tending to show animosity between appellant and the wife of deceased. Mrs. Clark testified that she kept her golf equipment in a locker at the Twin City Golf Club house, and that, about a year before, she had found two pairs of golf shoes, golf bag, and a golf club slit, apparently by a razor blade or knife. She stated that she left her key to the locker hanging on a board where anyone could have picked it up. Paul Watkins stated that he saw Mrs. Rand in the club house on the occasion when the equipment was damaged, though he could not say what time of day the incident occurred, nor could he say that no one was there except Mrs. Rand. This evidence was inadmissible since it did not relate to animosity or ill feeling toward the deceased, nor was the defendant connected with the act of damaging the property. In this respect, such evidence is distinguished from that deemed admissible under the ruling set forth in Avey v. State, 149 Ark. 642, 233 S. W. 765; and Stokes v. State, 71 Ark. 112, 71 S. W. 248, relied on by appellee.
Probably the most damaging inadmissible testimony which was permitted to go to the jury related to evidence concerning the kicking of Mrs. Clark by Mrs. Rand when the former was seven months pregnant. Mrs. Pete Elders testified that she attended a party in 1959 which was also attended by Mrs. Clark and the defendant. She stated that she was talking with the former, who was standing in front of her, and Mrs. Rand was seated on a high stool just to the right of the witness. From her testimony:
“Well, I was talking to Mrs. Clark when I felt something hit me on my right side, and I glanced down, because it was a blow and I seen this foot hit Mrs. Clark.
“Q. Do you know . . .?
Mr. Duty: Object to the testimony and ask it be stricken. Irrelevant, incompetent and immaterial.
“The Court: It will be overruled.
“Mr. Duty: Save our exceptions to the ruling.
“Mr. Coxey:
Q. Do you know whether that blow struck Mrs. Clark?
A. She had on a smock.
“Q. I say, do you know whether or not it struck her?
A. Well, I couldn’t feel for her, but the foot disappeared under the smock.
“Q. Under her smock?
A. Yes.”
Further:
“Now, you didn’t see Mrs. Band kick Mrs. Clark, did you?
A. I saw her foot.
“Q. I say, you didn’t see Mrs. Band actually in the act of kicking Mrs. Clark, did you?
A. Well, she had to be on the other end of the foot. ’ ’ The kicking was also testified to by Laney Clark. We can think of nothing that would tend to more inflame the mind of a juror than to hear evidence that a woman that far along in pregnancy was kicked in the stomach. Such an act by the defendant would be considered inexcusable, and we deem this testimony not only inadmissible, but also highly prejudicial; so much so that a reversal would be required though the other testimony herein cited was not included in the record. This evidence all tended to show that Mrs. Band was a woman of “bad character”, and Mrs. Band’s character had not been placed in issue. As stated in Wharton Criminal Evidence, Vol. 1, 11th Edition, p. 487, § 345:
“Evidence of other crimes, when offered in chief, violates both the rule of policy which forbids the state to initially attack the character of the accused and the rule of policy that bad character may not be proved by particular acts.”
There can be no donbt that all this evidence was prejudicial to appellant. By its very nature, it creates in the eyes of the jury a damaging image. As we said in Lentz v. State, 169 Ark. 31, 272 S. W. 847.
“It is the well settled doctrine of this Court that the prosecution cannot resort to the accused’s bad character as a circumstance from which to infer guilt, the reason being that ‘if such testimony be admitted the defendant might be overwhelmed by prejudice, instead of being tried upon evidence affirmatively showing his guilt of the specific offense with which he is charged.’ ”
Beversed.
McFaddin, J., concurs.