Summary
In Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977), we stated that the principle applies when there is an express or implied charge that a witness has fabricated a statement that he is now making under oath. It is then proper, and not hearsay, to show that he made the same statement before the motive for fabrication came into existence.
Summary of this case from Cole v. StateOpinion
No. CR 77-121
Opinion delivered October 17, 1977
1. APPEAL ERROR — JUDGMENT OF CONVICTION — PREJUDICIAL ERRORS NECESSARY FOR REVERSAL. — A judgment of conviction will be reversed for prejudicial errors only. 2. CRIMINAL PROCEDURE — TRANSCRIPT, BELATEDNESS IN CERTIFYING — EFFECT. — Although the clerk did not certify the transcript until approximately two weeks after the trial, no Prejudicial error was shown where appellant made no objection to the belated certification at the time and does not contend that it was incorrect. 3. EVIDENCE — HEARSAY — SELF-SERVING STATEMENT. — The court was correct in sustaining the objection to the testimony of appellant's sister that appellant called her on the evening of the robbery and stated that he was in Memphis, the self-serving statement being hearsay. 4. EVIDENCE — REBUTTAL OF IMPLIED CHARGE OF RECENT FABRICATION — TESTIMONY NOT HEARSAY. — Testimony actually rebutting an implied charge of recent fabrication is declared not to be hearsay by the Arkansas Uniform Rules of Evidence. [Ark. Stat. Ann. 28-1001, Rule 801(d)(1)(ii) (1976).] 5. EVIDENCE — UNIFORM RULES OF EVIDENCE, RULE 801(D) (II) — "RECENT" FABRICATION, CONSTRUCTION OF. — The word "recent" in describing a recent fabrication in Rule 801(d) (ii), Uniform Rules of Evidence (1976), is merely a relative term, meaning that the challenged testimony was fabricated to meet the exigencies of the case. 6. EVIDENCE — FABRICATED -STATEMENT, REBUTTAL OF — WHEN PRINCIPLE APPLIES. — When there is an express or implied charge that a witness has fabricated a statement that he is making under oath, it is then proper, and not hearsay, to show that came into existence, but the principle has no application where the appellant, if guilty, had the same motive when he made an alleged telephone call, i.e., the establishment of an alibi, as when he testified in the case.
Appeal from Mississippi Circuit Court, Chickasawba District, A. S. Harrison, Judge; affirmed.
Seay Bristow, by: Bill W. Bristow, for appellant.
Bill Clinton, Atty. Gen., by: Robert J. Govar, Asst. Atty. Gen., for appellee.
This charge of aggravated robbery arose from the armed robbery of a grocery store in Jonesboro. On motion the venue was changed to Mississippi county. The defendant denied the charge, asserting that he Was in Memphis, Tennessee, at the time of the crime. The jury returned a verdict of guilty and assessed the punishment at ten years in prison. There is no merit in either of the two arguments for reversal.
First, the transcript that Was sent from Craighead county to Mississippi county was not certified by the Craighead circuit clerk until about two weeks after the trial. No objection to the belated certification was made in the trial court; but it is argued here, on the authority of two early cases having to do with a clerk's failure to attach his official seal to such a certification, that the trial was void. Ball v. State, 48 Ark. 94, 2 S.W. 462 (1886); Hudley v. State, 36 Ark. 237 (1880).
The technical rule followed in those two cases was changed by a statute providing that a judgment of conviction should be reversed for prejudicial errors only. Lee v. State, 73 Ark. 148, 83 S.W. 916 (1904). That is still the law. We do not reverse a judgment for non-prejudicial errors. Underdown v. State, 220 Ark. 834, 250 S.W.2d 131 (1952); and see Ark. Stat. Ann. 43-2725.2 (Supp. 1975). Here there is no contention that the delayed certification was not correct.
Brown testified that he was in Memphis at the time of the robbery. His sister was called to testify that Brown telephoned her that evening and said that he was in Memphis. The court sustained the State's objection to the latter statement.
The court's ruling was correct, the self-serving statement being hearsay. It is argued, however, that the statement was relevant as a rebuttal of the State's implication that Brown's own testimony that he was in Memphis was a recent fabrication. It may be noted that testimony actually rebutting an implied charge of recent fabrication is declared not to be hearsay by the Arkansas Uniform Rules of Evidence. Ark. Stat. Ann. 28-1001, Rule 801(d)(1)(ii) (1976).
Here the appellant misconceives the meaning and purpose of the rule. The principle applies, even apart from statute, when there is an express or implied charge that a witness has fabricated a statement that he is now making under oath. It is then proper, and not hearsay, to show that he made the same statement before the motive for fabrication came into existence. Wigmore, Evidence, 1129 (rev. ed., 1972); McCormick, Evidence, 49 (2d ed., 1972). It has been correctly pointed out that the word "recent," describing the fabrication, is merely a relative term, meaning that the challenged testimony was fabricated to meet the exigencies of the case. People v. Singer, 300 N.Y. 120, 89 N.E.2d 710 (1949). The principle has no application here; for Brown, if guilty, had the same motive for fabrication when he made the alleged telephone call as he had when he testified in the case.
Affirmed.
We agree. FOGLEMAN, ROY, and HICKMAN, JJ.