Brickey v. State

• Decision Date: 23 May 1921
• Docket Number: 3
• Citation: 231 S.W. 549,148 Ark. 595
• Parties: BRICKEY v. STATE
• Court: Arkansas Supreme Court

231 S.W. 549

148 Ark. 595

BRICKEY v. STATE

No. 3

Supreme Court of Arkansas

May 23, 1921

Appeal from Van Buren Circuit Court; J. M. Shinn, Judge; affirmed.

Judgment affirmed.

J Allen Eades, for appellant.

It was error in overruling the motion for continuance. It stated good grounds for continuance. A material witness duly summoned was sick and unable to get to court. Act 52, Acts 1905, p. 143; 50 Ark. 161; 10 Id. 528; 21 Id. 560; 89 Id. 130; 64 S.W. 412. Absence of defendant's counsel without fault was good ground for continuance. 26 S.W. 60; 21 Ark. 460. The court abused its discretion in refusing a continuance.

J S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.

1. There was no error in refusing the continuance on the grounds stated therein. It does not state the materiality of the testimony of the absent witnesses or what they would testify to if present. C. & M. Digest, § 1270; 187 S.W. 308; 2 Ark. 33; 101 Id. 513. The testimony of the absent witness was cumulative merely. 215 S.W. 1. No abuse of discretion by the court was shown. 103 Ark. 352; 138 Id. 500. Due diligence was not shown. 90 Ark. 1.

2. The verdict is supported by the law and the evidence.

OPINION

WOOD, J.

On the 9th of March, 1921, the same being an adjourned day of the regular February term of the Van Buren Circuit Court, the appellant was convicted of the crime of selling intoxicating liquors, and by judgment of the court sentenced to imprisonment in the State penitentiary for one year. From that judgment he prosecutes this appeal.

1. Appellant urges as a ground for reversal of the judgment that the court erred in overruling his motion for a continuance. He assigns two reasons why the court erred. First, because of the absence of H. G. Wolverton a material witness, who was summoned before the court convened, and who was sick and unable to attend. The motion for continuance was in due form, but was not verified either by the appellant or his attorney for him, and, furthermore, another witness testified on behalf of appellant to substantially the same facts set up in the motion tending to impeach the testimony of the State's witness. The court did not abuse its discretion under these circumstances in overruling the motion. Sections 1270 and 3130 of Crawford & Moses' Digest. Morris v. State, 103 Ark. 352, 147 S.W. 74; James v. State, 125 Ark. 269, 188 S.W. 806; Burriss v. Wise & Hind, 2 Ark 33, 40; State Life Ins. Co. v. Ford, 101 Ark. 513, 142 S.W. 863.

2. The appellant set up that the cause should be continued on account of the absence of J. A. Eades, who was unable to attend court because the adjourned term was at a day when the circuit court was in regular session at Morrilton, requiring the attorney's presence at the latter court. The affidavit of Eades in support of this ground of the motion shows that he had been employed by the appellant to defend him, and his fee had been paid; that he appeared in attendance at the regular term of the Van Buren Circuit Court, but that court was adjourned until the 7th of March on account of the absence of the regular judge; that he could not appear at the adjourned day because on that day the regular term of the circuit court was in session at Morrilton, and he could not be present at both courts and was compelled, on account of his business in the latter court and the duty he owed his clients there, to attend that court. Of these facts he duly notified the presiding judge of the latter court and also the prosecuting attorney, and requested a continuance of the cause to the regular fall term of the Van Buren Circuit Court. The regularly employed attorney being absent, the court appointed Garner Fraser, an attorney in attendance at the adjourned term of the Van Buren Circuit Court, to represent the appellant, who prepared and filed his motion for continuance, and conducted his defense.

The court did not err in refusing appellant's motion to continue because of the absence of employed counsel. The right to be heard by counsel, guaranteed to persons accused of crime by the Bill of Rights, article 2, section 10 Constitution of 1874, was not denied the appellant in this case. On the contrary, when his regularly employed counsel did not appear, the court appointed counsel to represent him. Counsel who are employed to represent clients having cases pending in courts must so arrange their business as to be able to appear to represent their clients when those cases are called for trial. The business of the courts can not be controlled,...