concurring. It is with great reluctance that I agree to a reversal of this conviction; but a careful study of the record convinces me that I cannot place the stamp of judicial approval on the admission of some of the testimony that was used by the State over the objections of the defense. In Byler v. State, 210 Ark. 790, 197 S. W. 2d 748, we reversed a case because of error; and Judge Frank Smith in making the reversal quoted: “ ’Twill be recorded for a precedent and many an error by the same example will rush into the state. It cannot be.”1 That is the way I feel in this case. While the testimony may not have influenced the jury in view of other evidence, still I cannot, by affirming this conviction, place the stamp of approval on such evidence so as to be used in another case.
I do not agree with the majority opinion. The testimony showing Mrs. Band’s conduct toward Mrs. Clark could have been admissible — if properly limited — to show Mrs. Band’s dislike of Mrs. Clark because Mrs. Band was jealous of Mr. Clark. This would support the State’s theory of motive. It was part of the State’s claim that Mrs. Rand killed Mr. Clark when he tried to end their relationship: “Hell hath no fnry like a woman scorned.”2 The burden was on the defense to ask that the Court limit the purpose of the testimony to the one purpose for which it was admissible. See Amos v. State, 209 Ark. 55, 189 S. W. 2d 611. No such request was made, so I see no error duly preserved in regard to such evidence.
But, even so, there was other evidence admitted into this trial which was clearly inadmissible, as I will now detail:
A.
On Transcript Page 406, when the witness Wanda Sly, a waitress in Buddy Clark’s cafe, was testifying, the following occurred:
“Q. Now, you answered the phone, you say, on occasions. Did you ever answer the phone after it had rung and no one would answer and you’d hear them hang up?
Mr. Duty: That’s objected to.
A. Yes.
Mr. Duty: That is objected to.
The Court: Overruled.
Mr. Duty: Note our exceptions. ’ ’
The witness had been testifying as to telephone calls that Mrs. Rand made to Mr. Clark and in the quoted portion above, the Court allowed the witness to testify as to the phone ringing and somebody hanging up without answering. The quoted testimony was not admissible in evidence against Mrs. Rand and should not have been allowed because it was not shown that she had made such anonymous calls.
B.
Mrs. Laney Clark, the widow of Buddy Clark, was called as a witness and she testified as to telephone calls that she received from Mrs. Rand; and then on Transcript Page 670 the following occurred while Mrs. Clark was being examined:
“Q. Now, I ask you at this time, since you’ve had time to reflect, if you on any of those occasions when the phone rang and you heard noises, that you think of one now that you couldn’t recall when I examined you previously?
A. Deep breathing.
Mr. Duty: Just a moment. Object to those. Those were the anonymous telephone calls without anyone identifying themselves. Object to the testimony of those telephone calls and ask the jury not to consider them.
The Court: It will be overruled.
Mr. Duty: Save our exceptions.
Mr. Coxsey: Q. All right, do you remember any more?
A. Deep breathing. Just sit there and hold the phone and just breathe real hard in the telephone.
Q. When did that occur?
A. Over a period of several months within the last year. ’ ’
There was nothing to show that this “deep breathing” was done by Mrs. Rand. So far as the record shows in this case these calls could have been the prank of a child; and yet such evidence was permitted to go to the jury against Mrs. Rand.
C.
Again, Mrs. Laney Clark, widow of Buddy Clark, was recalled to the witness stand and permitted to testify that she had a locker at the Twin City Golf Clubhouse in which she kept her golf equipment; and on Transcript Page 695 et seq. this occurred:
“Q. I will ask you to tell the jury whether or not you sustained some damage to any of that equipment? If so, when?
Mr. Duty: Just a minute, Mrs. Clark. Object to that testimony, if tbe Court please. I could dream a thousand years and never dream up any connection between an injury to Mrs. Clark’s golf bag and this case we’re trying before this jury. This girl is not being tried for anything but this indictment here. There has been no connection shown between Mrs. Clark and Mrs. Rand and injury to a golf bag some time ago on a golf course at Rogers.
Mr. Coxsey: That’s what we’re endeavoring to do.
Mr. Duty: It has no connection with this case we ’re trying; only for prejudice. I object to that line of testimony.
The Court: Overruled.
Mr. Duty: Save our exceptions.
The Court: Order in the court room.
Mr. Coxsey: Q. What damage did you sustain to what articles?
A. Two pair of golf shoes, and my golf bag, and a golf club were slit with what looked like to be a razor blade or knife, and the golf cart was broken.
Q. And that was when?
A. Last year, last fall, a year ago this fall.
Mr. Coxsey: That’s all.
Mr. Duty: If the Court please, I renew my objection to that testimony. ’ ’
There was not the slightest bit of evidence to connect Mrs. Rand with the damage that had been done to Mrs. Clark’s golf equipment; and on cross-examination Mrs. Clark admitted that the key to her locker was, “. . . available to any Tom, Dick, and Harry that wanted to walk in there. . . . Anybody could get that key and unlock it. . . .” Nevertheless, the jury was left to surmise that Mrs. Rand might have been the person who had damaged Mrs. Clark’s golf equipment. Such unconnected evidence should never have been admitted.
D.
Again, there was the evidence about the lipstick. The witness, Velma Hudspeth, was permitted to testify that Mrs. Laney Clark had shown her some lipstick and that the witness had seen some lipstick carried by Mrs. Band which “seemed similar.” There was never any identity of the lipstick. Such testimony was highly prejudicial.
I have listed these instances of incompetent evidence permitted over objection, so that when the case is tried again — as it will be, since it is reversed and remanded— the same mistakes will not reoccur. Of course, a whole group of unsigned and anonymous letters were originally admitted without any proof as to the handwriting to connect Mrs. Band with the letters; and then later the Court excluded those letters. I cannot say that prejudicial error resulted since each member of the jury stated that he would disregard all such letters. Of course, on a retrial the letters will not be admitted without proper foundation proof.
As aforesaid, it is with great reluctance that I vote to reverse the conviction; but I am convinced that material and prejudicial error occurred in the admission of evidence.
The quotation is from Shakespeare’s “Merchant of Venice,” Act IV, Scene 1, Line 220. It is in answer to the equally famous quotation: “To do a great right, do a little wrong.”
The full quotation from William Congreve’s play, “The Mourning Bride,” Act III, Scene 8, is: “Heaven hath no rage like love to hatred turned, nor hell a fury like a woman scorned.”