The appellant was convicted of the crime of an assault with intent to rape. There was testimony on behalf of the State sufficient to sustain the verdict. The testimony of appellant tended to show that he was not guilty.
Over the objection of appellant, the State was allowed to prove that appellant was arrested in Oklahoma upon a charge of grand larceny, and that he refused to return to Arkansas to answer this charge without a requisition. The prosecuting attorney was permitted, over appellant’s objection, to ask appellant on cross examination: “Have you not been dodging the officers of the law for violations for the past two or three years? Have you not been convicted and served a term in the penitentiary? Have you and another fellow here been convicted of petit larceny in the last six months? Where did you do most of your work? Did you do any of it in the penitentiary of Arkansas?”
The State, over the objection of appellant, was permitted to show that appellant’s general reputation for truth and morality was bad.
The .court refused the following prayer of appellant for instruction: “The bad reputation of the defendant shall not be considered by you for any purpose except as to his credibility as a witness; you can not convict of assault with intent to rape on proof that he is or has been guilty of some other offense.” Exceptions were duly saved to these rulings, and they are among the grounds in the motion for new trial.
In Ware v. State, 91 Ark. 555, we said: “It is uniformly held that the prosecution can not resort to the bad character of accused as a circumstance from which to infer guilt. This doctrine is founded upon the wise policy of avoiding the unfair prejudice and unjust condemnation which such evidence might induce in the minds of the jury. If such should be admitted, the defendant might be overwhelmed by prejudice, instead of being tried upon the evidence affirmatively showing his guilt of the offense with which he is charged. ”
Appellant did not put in evidence his good character. Therefore, the State had no right, by way of contradiction, to show his bad character.
Appellant, however, having taken the witness stand in his own behalf, was subject to all the rules of examination and impeachment as any other witness. Therefore to test his credibility the State had the right on cross examination to ask the witness if he had not been convicted of petit larceny, and if he had not been confined in the penitentiary. Werner v. State, 44 Ark. 122; Holder v. State, 58 Ark. 473; Smith v. State, 74 Ark. 397; section 3138, Kirby’s Dig., as amended by Acts 1905, c. 52.
The State also, for the- purpose of impeaching appellant as a witness, had the right to show that his general reputation for truth or morality was bad. But the court should have specifically directed the jury that the evidence of the bad character of appellant could'only be considered by them as affecting the question of his credibility as a witness. The evidence as to the guilt of appellant was conflicting, and the failure of the court to give appellant’s prayer for instruction above-mentioned was error prejudicial to him, for which the judgment is reversed, and the cause is remanded for new trial.