DISSENTING OPINION.
McCulloch, C. J.The trial court was undoubtedly acting within its powers in ordering the arrest of witness Smith (People v. Hays, 140 N. Y. 484; State v. Swink, 151 N. C. 726; State v. Strado, 38 La. Ann. 562), and the questions to decide now are whether there was an abuse of discretion by the court as to the circumstances under which the arrest was made, and whether prejudice resulted to appellant.
In Martin v. State, 130 Ark. 442, we held that it constituted prejudicial error for the trial court to order the arrest of a witness for the accused in the presence of the jury, the reason given in the opinion being that the action of the court was calculated to destroy or lessen “the faith of the jury in the credibility of the witness.” This view is in accord with the weight of authority. See note to State v. Swink, supra; 19 Ann. Cas. 442. But in the present case the arrested witness was not introduced by appellant and gave no testimony in the latter’s favor. The witness stated that he had not bought any intoxicating liquors from appellant within the period of the statute of limitation, and this testimony was of a negative character and had no probative force. Doran v. State, 141 Ark. 442.
The only substantive testimony given by the witness was favorable to the State to the effect that he had purchased liquor from appellant more than three years before the finding of the indictment. Appellant was therefore not interested in upholding the credibility of this witness, and suffered no prejudice from the impairment of his credibility.
If the arrest of the witness in the presence of the jury had the effect of lessening his credibility, then the harm fell upon the State and not upon the defendant. There could certainly be no prejudice to the defendant in discrediting a State’s witness who had given no testimony favorable to appellant:
It is a settled rule of this court not to reverse for mere irregularities or errors in trials, unless prejudice might have resulted.
It should be added that the conduct of the witness upon which the court based its order of arrest was committed in the presence of the jury, and the court gave no intimation of opinion as to whether the perjury was probably committed by the witness in the testimony before the grand jury, or in that given before the trial jury. So it is difficult to discover in the incident any expression of opinion by the court upon the weight of the evidence or the credibility of the witness. •
The court sustained-the objection to improper comments of the prosecuting attorney in regard to the witness, and admonished the jury that they should not consider the same. It seems to me that the admonition of the court ought to be treated as a removal of the prejudicial effect of the improper remarks of the prosecuting attorney. We ought, I think, to accord to the trial judge the discretion of determining how far he should go in correcting improper remarks of counsel.-
The cases in this court are so numerous that it is unnecessary to cite them, holding that when the court excludes an improper remark to the jury it is no ground for reversal.
I discover no prejudicial error in the record in this case, and I think the -judgment should be affirmed. I am authorized by Mr. Justice Humphreys to say that he shares these views.