dissenting. In my opinion a reversible error was committed when the trial court permitted the State to introduce evidence calculated to impeach the defendant, when such evidence is not admissible in accordance with § 28-707, Ark. Stats., which is as follows:
“Impeachment of witness of opposite party. — A witness may be impeached by the party against whom he is produced, by contradictory evidence by showing that he has made statements different from his present testimony, or by evidence that his general reputation for truth or morality render him unworthy of belief, but not by evidence of particular wrongful acts, except that it may be shown, by the examination of a witness, or record of a judgment, that he had been convicted of a felony.” The Statute specifically provides that a witness cannot be impeached by evidence of particular wrongful acts except “by the examination of a witness, or'record of a judgment, that he has been convicted of a felony.”
The defendant was cross-examined in regard to any wrongful acts he may have committed and no complaint is made on permitting this cross-examination. However, the State was then permitted to introduce in evidence- a récord of a jury verdict to impeach the defendant. The Statute does not provide that a witness may be impeached by introducing in evidence a jury verdict, but a witness may be impeached by ‘ ‘ record of a judgment that he has been convicted of a felony. ’ ’
A jury verdict and a judgment are not one and the same thing. “When the law speaks of conviction, it means a judgment and not merely a verdict, which in common parlance is called conviction.” (24 C. J. S. 16). “Conviction” in the legal sense means a final judgment, conclusively establishing guilt. Smith v. Todd, 155 S. C. 323, 152 S. E. 506, 70 A. L. R. 1529.
The verdict may have been set aside within minutes after it was returned. It may be that no judgment was ever entered on the verdict. In fact, the record in this case indicates that there is no judgment of conviction. When objection was made to the introduction of the jury verdict as impeaching testimony, the objection was taken under advisement by the court, and the jury was dismissed until the following day. Thus, the State had ample opportunity to produce the record of a judgment of conviction if there had been one in existence to produce. No record of a judgment was brought forth.
The opinion of the majority points out that Act 222 of 1913 provides for the impeachment of a witness by evidence of his former conviction of a crime. The primary purpose of the 1913 Act was to remove, as a disqualification of a witness, the fact that he had been convicted of a felony. Prior to the passage of that Act, Judge Riddick, in the case of Vance v. State, 70 Ark. 272, 68 S. W. 37, had said:
“We take this occasion also to call attention to the backward state of the law in this state in reference to the competency of witnesses convicted of felony. The statutes which render such witnesses incompetent belong to a class of antiquated laws which suppress evidence, and which the wisdom of modern ages has discredited and shown to be unreasonable and injurious. They are of the same class as the laws which formerly forbade the parties to the suit from testifying and closed the mouth of the defendant on trial for his life, and' should be repealed as these laws have been repealed, for such matters should go only to the credit or impeachment of the witness — not to the exclusion of his testimony. ’ ’
Moreover, the 1913 Act did not change the law as to the kind of evidence necessary to show a former conviction, which always has been a record of a judgment of conviction. That is what the Statute says: “Record of a judgment” — not a jury verdict. In fact, up to this time it has been held that there is no conviction until there has been entered a judgment of conviction.
“Where disabilities, disqualifications, and forfeitures are to follow upon a conviction, in the eye of the law, it is that conviction which is evidenced by sentence and judgment, and that where sentence is suspended, and so the direct consequences of fine and imprisonment are suspended, or postponed indefinitely, so also the indirect consequences are likewise postponed.” State Medical Board v. Rodgers, 190 Ark. 266, 79 S. W. 2d 83.
In the case of Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41, the court held that a witness could not be impeached by proving specific acts of misconduct, but ‘ ‘ he may be proved by record evidence to have been convicted of infamous crimes.” When the court said record evidence of a conviction, it refers to a judgment of conviction because there is no conviction until the entry of a judgment.
The case of Owen v. State, 86 Ark. 317, 111 S. W. 466, is directly in point with the case at bar, the only distinction being that in the Owen case an attempt was made to impeach a witness by the introduction of a court record showing that he had pleaded guilty to the crime of grand larceny. There, Mr. Justice Hast said :
“It is of no consequence here, and it is not necessary to decide whether or not a circuit court has the power to indefinitely suspend or postpone sentence or judgment where there has been returned a verdict of guilty, or where the defendant has entered his plea of guilty, for the reason that it is not shown that sentence was subsequently pronounced. If the guilt of the party should be shown by his plea of ‘guilty, ’ which has not been followed by judgment, the proof does not go to the competence of the witness. 1 Greenleaf on Evidence, (16th Ed.), § 375. The %miversal rule is that it is not the guilt that disqualifies the witness, but that it is the judgment itself that renders him infamous. 1 Bishop on Criminal Lato (5th. Ed.), § 975; 1 Wigmore on Evidence, § 521.”
The case of Michigan-Ark. Lbr. Co. v. Bullington, 106 Ark. 25, 152 S. W. 999, is also directly in point with the case now under consideration. We quote therefrom as follows:
“The first contention is, that the plaintiff was incompetent as a witness in his own behalf on account of conviction for an infamous crime in the State of Missouri, and that the court erred in allowing his testimony to be introduced. The record of a court of competent jurisdiction in the State of Missouri was introduced, showing that plaintiff was indicted and placed on trial for the crime of robbery, and that he was convicted by the jury, but the record does not shoiu the rendition of a judgment of conviction by the court. There were attempts to show by oral testimony, on the one side, that the verdict of the jury had been set aside and a new trial granted and, on the other side, that the judgment had not been set aside, but that the plaintiff was paroled upon his own good behavior.
‘ ‘ The record itself, which is the sole evidence of the conviction, fails to show any judgment. It is earnestly contended on behalf of defendant that it is the conviction by the jury, and not the judgment of the court, which disqualifies the witness. This court has, however, held to the contrary, and we must treat that question as settled. Owen v. State, 86 Ark. 317, 111 S. W. 466.”
In the case of State Medical Board v. Rodgers, 190 Ark. 266, 79 S. W. 2d 83, decided in 1935, which, of course, was subsequent to the 1913 Act mentioned in the majority opinion, the Owen case and the Michigan-Ark. Lumber Company case were considered to be the law of this State, and, in addition to the quotation previously made from the Medical Board case, Mr. Justice McHaney speaking for the court said:
“In Huddleston v. Craighead County, 128 Ark. 287, 194 S. W. 17, one Jim Float was indicted in Craighead County charged with a felony, to-wit, unlawfully selling liquor. He entered a plea of guilty to the charge, and a judgment of guilty of said crime was entered and sentence suspended. The judgment of guilty carried with it the costs against said Float, but the Court found that he had no money or property out of which the costs could' be collected, and it was adjudged that Craighead County was liable for the costs which the Clerk was ordered to certify to the county court, including the fee of the prosecuting attorney. The county court refused to allow the fee of the prosecuting attorney, and the circuit court, upon appeal, made a similar order. On appeal here the court said: ‘The question to be decided is, whether the plea, upon which the judgment set out above was entered, constitutes a conviction, within the meaning of the § 3488, of Kirby’s Digest. ’ And we answered the question in the negative. After citing and quoting the section of the Digest relating to the fees of the officers, the court said: ‘Notwithstanding his conviction, by the verdict of a jury or a plea of guilty, the accused does not become a convict until there has been a judgment and sentence by the,, court.’ Citing Owen v. State, 86 Ark. 317, 111 S. W. 466; Michigan-Ark. Lbr. Co. v. Bullington, 106 Ark. 25, 152 S. W. 999. The court further said: ‘In the case of Barwick v. State, 107 Ark. 115, 153 S. W. 1106, there was a plea of guilty and a continuance of the case under the direction that the fine be imposed at the pleasure of the court, but that the costs should be immediately paid by the defendant.’ It was there said: ‘It may well be doubted whether the costs should be collected until final judgment was entered against appellant. ’
“It was not necessary to decide in that case whether it could be done or not. However, we are now called upon to confirm the doubt there expressed; and we do now so hold. The judgment rendered is not a final one. . . . There has been no conviction within the meaning of the Statute. There has. been no final judgment entered because the sentence has been suspended, and the appellee has not been required to surrender himself in execution of such judgment. ” —
If the rule which has prevailed in this State up to this time to the effect that there is no conviction until there is a judgment of conviction is to he departed from, and hereafter a person may be impeached by the proof of a jury verdict, and a judgment of conviction is not necessary as provided in the Statute, where is the stopping point? If a conviction can be shown by a record of a jury verdict where, apparently, there is no judgment record of conviction, then can a conviction be shown by oral testimony as was attempted in the case of Michigan-Ark. Lumber Co. v. Bullington, supra? Of course, the answer would be in the negative because the Statute does not authorize such evidence. Neither does it authorize impeachment of a witness by showing a previous conviction by any method other than “by the examination of a witness, or a record of a judgment, that he had been convicted of a felony. ’ ’
For the reasons set out herein I respectfully dissent and am authorized to say that Mr. Justice McFaddin and Mr. Justice George Rose Smith join me in the view expressed herein.