Summary
In Girard v. Kuklinski, 235 Ark. 337, 360 S.W.2d 115 (1962), it was explained that if the record of a conviction is inadmissible, there is even more reason to hold that evidence of a traffic citation, which is a "mere charge," is admissible.
Summary of this case from Bearden v. J.R. Grobmyer Lumber Co.Opinion
No. 5-2758.
Opinion delivered September 10, 1962. [Rehearing denied October 8, 1962.]
1. MOTOR VEHICLES — ADMISSIBILITY OF CRIMINAL CHARGE. — In a civil action for damages arising from a traffic collision a police officer's testimony that he placed a charge against the defendant for driving while under the influence of intoxicants is inadmissible. 2. MOTOR VEHICLES — ADMISSIBILITY OF CONVICTION. — No record of a conviction under the Uniform Act Regulating Traffic on Highways is admissible in a civil case, Ark. State. 1947, 75-1012. 3. MOTOR VEHICLES — ADMISSIBILITY OF CONVICTION. — Act 208 of 1953, being an amendment and restatement of 49 of the Uniform Act Regulating Traffic on Highways, is subject to the general provisions of that act. 4. APPEAL AND ERROR — PREJUDICIAL NATURE OF ERROR. — Case was reversed where court could not say that the admission of incompetent error was not prejudicial. 5. APPEAL AND ERROR — INVITED ERROR. — Counsel's reference to admissible testimony in his opening statement to the jury was not an invitation for the use of incompetent and prejudicial testimony by the other side.
Appeal from Garland Circuit Court; P. E. Dobbs, Judge; reversed.
Wootton, Land Matthews, for appellant.
Richard W. Hobbs, for appellee.
This is an action by Kuklinski and his wife to recover damages for personal injuries and loss of consortium sustained when the husband's car, while stopped at an intersection, was struck from behind by a vehicle driven by the appellant. There was a $12,000 verdict for Kuklinski. We find it necessary to consider only the appellant's contention that the court permitted the plaintiffs to introduce incompetent and prejudicial evidence.
Two police officers who investigated the accident gave their opinion that the defendant Girard was drunk at the time. Over air objection one of these witnesses also testified that he placed a charge against Girard for driving while under the influence of intoxicants.
The latter testimony was inadmissible. It is generally held that evidence of an arrest or of the filing of a charge, without proof that a conviction resulted, is incompetent. Blashfield, Cyclopedia of Automobile Law and Practice (Perm. Ed.), 6196. The minority view was taken in Segerstrom v. Lawrence, 64 Wn. 245, 116 P. 876, but that case was overruled in Billington v. Schaal, 42 Wn.2d 878, 259 P.2d 634.
The exclusionary rule is sound. The fact of arrest was not in itself a significant act for the jury to consider. It merely indicated the officer's belief at that time and thus corroborated his testimony that he thought Girard to have been drunk. It is, however, ordinarily improper for a witness's testimony to be reinforced by proof that he made the same statement upon some earlier occasion. Rogers v. State, 88 Ark. 451, 115 S.W. 156, 41 LRANS 857. There we held the admission of such bolstering testimony to be prejudicial.
Here the proof was especially objectionable, for our Uniform Act Regulating Traffic on Highways, Act 300 of 1937, provides that no record of a conviction under the act shall be admissible as evidence in a civil case. Ark. Stats. 1947, 75-1012; Garver v. Utyesonich, 235 Ark. 33, 356 S.W.2d 744. The appellees argue that the charge of drunken driving did not involve a violation of the Uniform Act, since the charge was lodged under a later statute, Act 208 of 1953. Ark. Stats., 75-1027. The latter act, however, was in substance an amendment and restatement of 49 of the Uniform Act, and consequently the later statute should properly be treated as falling within the purview of the general provisions of the Uniform Act. Since the record of a conviction under the act is inadmissible there is still less reason for admitting proof of a mere charge.
We cannot say with confidence that the inadmissible evidence was not prejudicial. The jurors may well have supposed that the placing of the charge was an indication of its truth, in the absence of an affirmative showing by Girard that he was not convicted. If he really was convicted, as appears to have been the case, then he was powerless to rebut the jury's inference, and proof of the mere charge was just as damaging as proof of the conviction would have been.
We do not agree with the trial court's conclusion that the inadmissible testimony was invited by Girard's attorney, who conceded in his opening statement to the jury that his client had consumed three or four bottles of beer before the accident. Inasmuch as proof that Girard had been drinking was undoubtedly admissible, we fail to see why counsel's reference to that proof should be considered as an invitation for the use of incompetent and prejudicial evidence.
Reversed.