(dissenting). The statement of Homer Davis to E. Gr. Eitchie was purely self-serving and did not tend to connect appellant with the commission of the crime, as did the testimony of the other three witnesses who gave testimony concerning statements of Homer Davis, and the testimony of Eitchie could not have had any effect prejudicial to appellant. Besides, the substance of the statement to Eitchie was embraced in the statement to the other three witnesses, Kell, Jean and Headrick, and the testimony of those three witnesses was undisputed.
The rule has frequently been laid down by this court that in a criminal case as well as in a civil case the admission of incompetent evidence should be treated as harmless, and not to cause a reversal of the judgment, where the fact sought to be proved was established by other undisputed evidence. Lee v. State, 78 Ark. 77; Renfroe v. State, 84 Ark. 16; Farrell v. State, 111 Ark. 180; Taylor v. State, 113 Ark. 520; Kelley v. State, 133 Ark. 261.
In the case of Farrell v. State, supra, we said: “It is well settled in this State that there is no prejudicial error in admitting incompetent testimony of a fact that has been proved by the undisputed evidence.”
It is not discoverable in any of the opinions in the cases cited above that the testimony can only be treated as undisputed where the accused has introduced testimony on the point “which coincided with that of the State.” In fact, a perusal of the cases cited above will show that in most of them, if not all, the undisputed evidence was adduced by the State. However, it is unimportant, I think, the source from which the undisputed evidence emanates, for if it is undisputed and uneontradicted, so that the jury has no right to arbitrarily reject it, then there can be no harmful result flowing from the introduction of incompetent evidence tending to establish the same fact.
Appellant adduced no testimony in the trial of this case, and the statements of his brother, Homer Davis, were proved by the undisputed testimony of three unimpeached witnesses. One of them was the deputy sheriff who made the arrest, and there was not the slightest hint in the argument of counsel of the existence of any ground for questioning the testimony of those witnesses.
I think the judgment should not be reversed for an error which obviously could not have had any harmful effect.