dissent">Hart, J.,

(dissenting). Judge Humphreys and myself think that the trial court committed prejudicial error in allowing the prosecuting attorney to ask the defendant if he had not been in jail, and requiring’ the defendant to answer the question. In answering the question of whether or not he had been in jail the defendant said that he had been in jail at Walnut Ridge and here (meaning, by the latter, the place where he was being tried). Further questioning elicited the response from the defendant that he was in jail at Walnut Ridge and at the county seat, where he was being tried, charged with the offense of which he was convicted.

Again, he was asked if he had been in jail anywhere else, and he answered, £iYes sir, at Harrisburg.” In response to further questioning he answered that he was in jail at Harrisburg, charged with robbery. He stated, further on, that he had been acquitted of that charge.

While we recognize that there is a distinction between independent evidence introduced for the purpose of impeaching a witness, under § 4187 of Crawford & Moses ’ Digest, and the questions which are permitted, in the discretion of the court, to be put to a witness tending to affect his credibility, within the rule laid down in case of Hollingsworth v. State, 53 Ark. 387, we are of the opinion that the questions asked do not fall within the rule laid down - in the case last cited. Judging by the context of the decisions from New York, there cited, it is evident that the court meant that the defendant could be questioned as to being in jail as a punishment for crime. This is shown by the later decision of Bates v. State, 60 Ark. 450. In that case it was held that it was error to permit the defendant in a criminal case to be asked, on cross-examination, whether he had hot been previously indicted for a felony, and that his answer was that he was indicted, but acquitted, did not remove the prejudice that may have resulted.

The court again quoted from a New York case, with approval, the following: “The single fact that he (the defendant) had been complained of and held for trial for the commission of a crime did not affect his moral character.” This was upon the ground that the witness was presumed to be innocent until convicted. This rule of evidence follows the defendant throughout the trial, and it is plain to us that it is violated if his credibility can be affected by the fact that he has been in jail on account of the crime for which he is being -tried or on account of another crime for which he was acquitted.

The prosecuting attorney may ask the defendant, on cross-examination, if he has not committed another crime, for this is asking him if he had not committed the act. But this court has repeatedly held that a defendant could not be asked whether or not he had been indicted for a particular offense, on the ground that an indictment does not prove guilt. To ask him if he has not been accused of another crime and confined in jail pending a trial is to allow that to be done indirectly which we have said cannot fie done directly. Such a course is equivalent to asking a defendant if he has not been indicted or charged with another crime. Again, to allow his credibility to be affected by the fact that he was so unfortunate as not to be able to give bail, upon being arrested for the crime for which he is being tried, is, in effect, to destroy the rule of evidence that the defendant is presumed to be innocent until proved to be guilty.

Again, in a capital case, where the defendant was not entitled to bail, his credibility as a witness would be affected by the fact that he had been confined in jail, if he should elect to take the stand in his own behalf, and thus the presumption of innocence would be effectually destroyed. Courts should not suffer prosecuting' attor- • neys to -do anything indirectly which could not be done directly. The fact that a defendant has been in jail, charged with the crime for which he is then being tried, or for an independent crime, should not be allowed to affect his credibility as a witness, and thus effectually overcome the presumption of innocence in his favor.

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