the rights, of the parties in this respect reads the preponderance of the testimony. It is as follows: shown by the testimony beyond dispute that the reason for the disapproval of the honds was that one of the members of the firm of attorneys was doubtful in his opinion whether or not there was authority for converting the bonds from 6 per cent. to 5 or 51⁄2 per cent. interest, the other members of the firm maintaining that it was valid, but on account of an office rule of those attorneys they de clined to approve bonds when either member of the firm expressed a doubt as to the validity. At any rate, it is shown by the "It is further understood and agreed by and between the parties hereto that said bonds shall be issued as either 5 per cent. or 51⁄2 per cent. bonds, as the party of the first part may elect, and be paid for on a basis of 1031⁄2 for 6 per cent. bonds, provided, however, that if issued as either 5 per cent. or 51⁄2 per cent. bonds, the aggregate amount of the principal and interest shall not exceed the aggregate amount of principal and interest on the above-named amount of 6 per cent. bonds." The contract also contains the following evidence that on December 19, 1917, Cravens clause: "The said bond issue shall be examined and approved by an attorney satisfactory to the party of the first part, who shall be an attorney of recognized ability and standing in passing upon bond issues, and the party of the second part hereby agrees to promptly furnish such attorney with all information which he may require in order to enable him to pass upon the validity of the said bond issue." The contract then concludes with a clause with reference to a deposit to be made on the price of the bonds, which reads as follows: "The party of the first part agrees to deposit . immediately with the party of the second part a certified check for the sum of fifteen hundred ($1,500.00) dollars, to guarantee the good faith of the party of the first part. The party of the second part shall hold said check until the acceptance of said bonds and payment therefor by the party of the first part, when said check shall either be returned to the party of the first part or be used as a part of the purchase price of said bonds. If the party of the first part shall fail to accept and pay for said bonds in accordance with the provisions of this contract, such check shall be forfeited to the party of the second part. If for any reason the party of the second part shall fail to deliver said bonds, as herein agreed upon, said check shall immediately be returned to the party of the first part." Cravens & Pierce deposited with appellant a check for the sum of $1,500 on appellee Southern Trust Company, a banking corporation, and the check was duly certified by the latter. Cravens & Pierce also selected a firm of attorneys in the city of Little Rock of recognized standing and ability, and whose opinion is frequently sought by bond buyers in the purchase of securities of this character. The matter was submitted to this firm of attorneys, and they at first declined to approve the bonds if issued to bear 5 per cent. or 51⁄2 per cent. interest, and they communicated their views to the parties to the contract. This was either in November or December, 1917. There is a conflict in the testimony as to whether or not the expression of the views of the attorneys in the disapproval of the bonds was unqualified and final, but the state of the testimony is such that we cannot say that the finding in favor of appellee on that issue is against & Pierce addressed the following letter to the president of the road improvement district and the attorney for the district: "Dear Sirs: As you know, we entered into a contract to purchase the bond issue of St. Francis county road improvement district No. 2. "This contract provides that these bonds would bear interest at the rate of 5 per cent. or 5% per cent., as we might elect, and be paid for on the basis of 1031⁄2 for 6 per cent. bonds. "Some thirty days or more ago, your attorney, Mr. S. S. Hargraves, in company with the writer, called on Mr. George B. Rose, of the firm of Rose, Hemingway, Cantrell, Loughborough & Miles, whom we had selected to examine and pass upon this bond issue. Mr. Rose told us at the time that he would not approve either a 5 or 51⁄2 per cent. bond from your district. "Under these circumstances, it appears that our contract cannot be carried out by you. However, if you care to have 5 per cent. bonds printed and executed and presented, we will accept and pay for them if our attorney will approve them. Since he has already intimated that he will not approve them, we doubt if it would be advisable for you to have them printed. We merely give you this information for your benefit. "Since it appears that you are unable to carry out your contract with us, because the attorney will not approve either a 5 or 51⁄2 per cent. bond, and as you know we have elected under our contract to take a 5 per cent. bond, we suggest that you return to us the certified check which has been put up with you." Shortly after the receipt of that letter the attorney for the district came to Little Rock again and took the matter up with the attorneys who were selected to approve or disapprove the bonds, and those attorneys, upon reconsideration, decided to approve the bonds, and expressed their intention to do so in the following letter addressed to the attorney of the district: "January 14th, 1918. "Mr. S. S. Hargraves, Forrest City, Ark.~ Dear Sir: St. Francis County Road Improvement District No. 2. We have concluded to approve the 5 per cent. and 52 per cent. bonds issued upon the contract for the sale of the 6 per cent. bonds at par, convertible into 5's and 52's. We do not think that a conversion of the bonds would require a revision of the tax levy. There is a possibility that the Supreme Court might hold that the commissioners or the purchaser would be responsible for a discount on Cravens & Pierce were notified of this, but they refused to accept the bonds, and several months later, after readvertising the sale, the improvement district sold the bonds to other parties at a lower price than that stipulated in the contract with Cravens & Pierce. Appellant threatened suit, and the Southern Trust Company filed a bill of interpleader in the Pulaski chancery court against appellant and Cravens & Pierce offering to deposit in court the amount of the certified check and asking the court to determine the proper party to whom it should be paid, whether to appellant or to Cravens & Pierce, Appellant answered, setting forth the facts concerning the offer of the selected attorneys to finally approve the bonds and the refusal of Cravens & Pierce to accept the bonds, and prayed for a decree against appellee Southern Trust Company for the amount of the certified check. It is also alleged in the answer that appellant has sustained damage in the sum of $5,510 on account of the refusal of Cravens & Pierce to accept the bonds. The answer was made a cross-complaint against Cravens & Pierce. On final hearing of the cause the court rendered a decree dismissing the crosscomplaint for want of equity and canceling the certified check and directing the payment over to Cravens & Pierce of the funds deposited in the registry of the court. Cravens & Pierce based their refusal to accept the bonds on what they construed to be a qualified approval of the bonds by the attorneys selected to pass on that question, but the proof in the case shows that the letter was not the final approval of the bonds, but merely indicated that the bonds would be approved when issued. The proof shows that the well-known custom of the attorneys was to indicate to a client what the views of the members of the firm were concerning the validity or invalidity of the bond issue, and that when there was to be approval the firm used a certain form of letter to accompany the bond issue unqualifiedly approving the same. The letter copied in the record shows that, while the members of the firm entertained a slight degree of doubt as to what the court of last resort of the state would decide as to the liability of the purchaser, they clearly indicated in the letter an intention to approve the bonds unquali fiedly. It was not improper for the attorneys to indicate any doubt that might exist in their minds on any point involved in the inquiry, and they did this very candidly, but the letter gives expression of their opinion as to the validity of the bond issue and expresses a willingness to approve the bonds. The law is not such an exact science as will always justify a lawyer in giving an unqualified opinion either one way or the other, and careful lawyers, even with some doubt in their minds upon a question under consideration, may reach a definite conclusion and are willing to base an expression of opinion on it to a client, but at the same time may feel constrained to indicate the possibility of a doubt on the question. Such an expression manifests, not necessarily a doubt in the mind of the attorney who gives the opinion, but merely that there is some room for doubt in the question, and a careful attorney may be unwilling to give an unqualified opinion without indicating that the questions involved are not entirely free from doubt. We think that this letter indicates that state of mind of the attorneys who gave the opinion, but, notwithstanding there was room for slight doubt on a minor question involved, they were of the opinion the bonds issued at the lower rate of interest would be valid, and that a purchaser would be safe in accepting the bonds. Conceding that, on account of the doubt in the mind of one of the members of the firm, the attorneys had previously declined to approve the bonds, that was not treated as final by the parties to the contract, as evidenced by the letter of Cravens & Pierce dated December 19, 1917, in which they stated to appellant that they were willing to accept the bonds if the selected attorneys would approve them. On the faith of that letter, the matter was again taken up with the attorneys, and, as before stated, they reconsidered the matter and decided to approve the bonds. We are of the opinion that Cravens & Pierce were not justified in refusing to perform the contract, and that the court erred in exonerating them from liability. The decree is therefore reversed, and the cause remanded, with directions to render a decree in favor of appellant against Cravens & Pierce for the amount of the check, with interest from the commencement of this suit, and direct the payment to appellant of the amount of $1,500 deposited in the registry. of the court in satisfaction pro tanto of the decree. 4. CRIMINAL LAW 1038(1) 5. CRIMINAL LAW 779- MISLEADING IN- In prosecution for assault with intent to rape, instruction that defendant would not be responsible for the act of another, unless there was some agreement, combination, or conspiraey between him and such other, etc., was misleading and properly refused. On Rehearing. 6. CRIMINAL LAW 11702 (1)—ADMITTING TESTIMONY CONTRARY TO STATUTE-REVERS- In prosecution for assault with intent to rape, permitting state to introduce testimony tending to establish prosecutrix's general reputation for truth and morality, contrary to Kirby's Dig. 3140, providing that evidence of good character is inadmissible until general reputation has been impeached, was reversible er ror. IM 9. WITNESSES 318, 344(2), 379(1) PEACHMENT OF PROSECUTRIX-PARTICULAR INSTANCES OF IMMORALITY. While credibility of a witness may be impeached by proof on cross-examination of specific instances of immorality, or by proof of contradictory statements, such evidence does not justify the introduction of proof of good character in support of the witness, in view of Kirby's Dig. § 3140, declaring that such proof is inadmissible until general reputation has been impeached. Appeal from Circuit Court, Garland County; Scott Wood, Judge. Melvin Lockett and another were jointly indicted for assault with intent to commit rape, and, on election of the two defendants to sever, Lockett was tried separately and convicted, and he appeals. Reversed and remanded for new trial. A. J. Murphy, of Hot Springs, for appellant. Jno. D. Arbuckle, Atty. Gen., and T. w. Campbell, Asst. Atty. Gen., for the State. MCCULLOCH, C. J. Appellant and one Wilson were jointly indicted by the grand jury of Garland county for the crime of assault with intent to commit rape upon the person of Chessie L. Veach, and, on the election of the two defendants to sever, appellant was tried separately and convicted. It is first contended that the evidence does not sustain the verdict, and the case of Anderson v. State, 77 Ark. 37, 90 S. W. 846, is relied on, where the rule in such a case was stated to be that "There must be in every assault an intention to injure, coupled with an act which must be at least the beginning of an attempt to injure them, and not an act of preparation for some 7. CRIMINAL LAW 415(6)-RAPE 44- contemplated injury that may afterwards be IMPEACHMENT OF PROSECUTRIX-PARTICU-inflicted." LAR INSTANCES OF IMMORALITY. In prosecution for assault with intent to rape, admission of prosecutrix concerning her immoral conduct on the occasion of the alleged assault, and also testimony of other witnesses concerning that misconduct, was competent to explain the relations of the parties at the time of the assault. 8. WITNESSES 318, 344(2)-IMPEACHMENT PARTICULAR INSTANCES OF PROSECUTRIX In prosecution for assault with intent to rape, it was not competent for defendant to introduce testimony of specific instances of im That rule was adhered to and applied in the more recent case of Douglass v. State, 105 Ark. 218, 150 S. W. 860, 42 L. R. A. (N. S.) 524. The facts of the present case do not, however, under the rule announced, fall short of being sufficient to sustain the verdict. [1, 2] The evidence of the prosecuting witness, upon which the verdict of the jury was based, established the fact that appellant and the other person named in the indictment made an assault upon her with intent to have sexual intercourse with her, forcibly and against her will, and that there were For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 56 207 SOUTHWESTERN REPORTER acts committed not merely constituting the Wilson in the latter's effort to have inter- course with the female. We do not think the re [5] Still another assignment of error lates to the refusal of the court to give an instruction requested by appellant which told the jury that appellant would not be responsible for the act of Wilson unless the jury believed from the evidence "that there was some agreement, combination, or conspiracy between the defendant and the said C. C. Wilson to ravish or attempt to ravish said prosecuting witness, said Chessie L. Veach." The jury might have understood from that instruction, if it had been given, that, in order to convict appellant for aiding and abet ting Wilson in the commission of the offense, it was essential that there should have been some previous "agreement, combination, or conspiracy" between the two men to commit the offense. Other instructions given by the court made it plain to the jury that in order to convict appellant, he must, either have made the assault himself with intent to have sexual intercourse with the prosecuting wit It is next contended that the court erred in permitting the state to introduce rebuttal testimony tending to establish the general reputation of the prosecuting witness for truth and morality. In support of that assignment of error, counsel invoke the statute Wilson in making the assault. (Kirby's Digest, § 3140) which reads as fol-ness, or that he must have aided and abetted lows: 8 The case was submitted to the jury on cor"Evidence of the good character of a wit-rect instructions, and, while there was ness is inadmissible until his general reputation has been impeached." We decided in the recent case of Patrick Appellant and Wilson each testified in the [3, 4] Objection is made to the first instruction given by the court on the ground that it is open to the construction that if appellant was present, aiding and abetting Wilson in the commission of an assault upon the person of the prosecutrix, he would be guilty of the offense charged in the indictment, even though the assault was made by Wilson without any intention of having sexual inter sharp conflict in the testimony bearing upon the question of the guilt or innocence of the two accused men, the evidence was sufficient to sustain the verdict. The judgment is therefore affirmed. On Rehearing. [6] On reconsideration of this case, we have reached the conclusion that it was wrong to hold that no prejudicial error was duce testimony tending to establish the gencommitted in permitting the state to introeral reputation of the prosecuting witness for truth and morality. If it was error to admit the testimony, it ought not to be said that such error is not prejudicial and does not call for a reversal of the judgment, for which is mandatory in its terms. that would be to disregard the statute itself, In the original opinion we followed the case of Patrick v. State, but that case was different, in that the proof introduced was for the purpose of proving the chastity of the prosecuting witness, and we held that there There is, it is was no prejudice because under the law chastity would be presumed in the absence of proof to the contrary. true, a presumption of good character on the the witness concerning her immoral conduct on the occasion of the alleged assault, and also the testimony of other witnesses concerning that misconduct, was competent to explain part of a witness in the absence of proof to the contrary; but the difference in the two cases is that in one there is no statute declaring the testimony inadmissible and in the other there is such a statute, and for the the relations of the parties at the time of court to disregard it by holding that, notwithstanding its plain violation, no effect will be given it because it was nonprejudicial, would be to nullify the statute. the assault; but it was not competent for appellant to introduce testimony of specific instances of immoral conduct for the purpose of impeaching the character of the witness or her general reputation for truth and morality, and such testimony could not be made the basis for the introduction of testimony supporting her general reputation. It seems to us now, on further reflection, that to fortify the credibility of a witness by proof of general reputation, where no attack has been made, is calculated to give undue weight to it, which the statute itself was intended to forbid. State v. Owens, 109 Iowa, 1, 79 N. W. 462; Shields v. Conway, 133 Ky.tation and credibility of a witness, and under 35, 117 S. W. 340. [9] The statute, it will be readily seen, observes the distinction between general repu terms declares that such proof is inadmissible until "general reputation has been impeached." The following authorities on the subject may be read with interest: Jones on Evidence, § 865; State v. Owens, supra; Tedens v. Schumers, 112 Ill. 263; Shields v. Conway, supra; People v. Gay, 7 N. Y. 378; Harrington v. Lincoln, 70 Mass. (4 Gray) 563, 64 Am. Dec. 95; Atwood v. Dearborn, 83 Mass. (1 Allen) 483, 79 Am. Dec. 755; Gertz v. Fitchburg Railroad Co., 137 Mass. 77, 50 Am. Rep. 285. it an attack by proof of the latter only will The case of Patrick v. State was decided form the basis for the introduction of proof correctly, but anything in the opinion which of good character. The credibility of a might appear to hold that the same rule witness may be impeached by proof on crosswould be applicable to a case of proof of gen- examination of specific instances of immoeral reputation is now disapproved, and we rality, or by proof of contradictory statehold that, where testimony is admitted con- ments; but that does not justify the introtrary to the terms of the statute, it neces-duction of proof of good character in support sarily calls for a reversal of the judgment. of the witness, for the statute in express The Attorney General defends the ruling of the trial court in admitting the state's testimony in support of the good character of the prosecuting witness for truth and morality on the ground that appellant impeached her credibility on cross-examination and by the introduction of other testimony. Counsel for appellant asked the prosecuting witness if she had not visited the West End Hotel, a place where was shown by other testimony to be a house of ill repute, with a man named Wilmot, and spent the night with him. The witness denied that she had done so, but admitted that she went to the West End Hotel on another occasion with a party of young people and danced for a short while. She explained that she did not know that the place had a bad reputation. Another witness introduced by appellant testified that the prosecuting witness admitted that she took several drinks of whisky with appellant and Wilson on the evening the assault was committed and while taking the ride. Appellant and Wilson each testified that the prosecuting witness drank whisky with them while they were out on the ride and that she admitted to them instances of immoral conduct on her part. [7] Now, it was competent, of course, to impeach the credibility of the prosecuting witness on cross-examination by interrogating her concerning particular instances of immorality on her part; but appellant was bound by her answers on that subject and I could not introduce witnesses to contradict her. McAlister v. State, 99 Ark. 604, 139 6. W. 684. In some of the states, statutes similar to our own have been enacted; but none of the states where the above cases were decided have such statutes, as far as we can ascertain, except the state of Kentucky, from whom our statute was borrowed in precise language. But all of the authorities are unanimous in holding that only an attack on the credibility of a witness by some form of proof of general reputation will justify the support of the witness by proof of good character. In both Kentucky and Massachusetts it was held that proof of conviction of a witness of felony justified the introduction of proof of good character in support of the witness, but this is on the ground that the taint of the conviction tends to impeach the general reputation of the witness for truth and morality. The trial court erred in admitting the proof of good character of the prosecuting witness, and that error was prejudicial, or may have been so. The rehearing is therefore granted, and, for the error indicated, the judgment is reversed, and the cause remand [8] The testimony as to the admissions of ed for a new trial. |