Bryan v. State

• Decision Date: 18 March 1929
• Docket Number: (No. 217.)
• Citation: 15 S.W.2d 312
• Parties: BRYAN v. STATE.
• Court: Arkansas Supreme Court

Page 312

15 S.W.2d 312

BRYAN v. STATE.

(No. 217.)

Supreme Court of Arkansas.

March 18, 1929.

Petition for Rehearing Withdrawn April 15, 1929.

Appeal from Circuit Court, Crawford County; J. O. Kincannon, Judge.

Addis Bryan was convicted of receiving three bags of stolen coffee knowing same to have been stolen, and he appeals. Affirmed.

W. H. Neal and Dave Partain, both of Van Buren, for appellant.

Hal L. Norwood, Atty. Gen., and Pat Mehaffy, Asst. Atty. Gen., for the State.

McHANEY, J.

Appellant was convicted of the crime of receiving three bags of stolen coffee of the value of $100, knowing the same to have been stolen, and sentenced to one year in the penitentiary.

Several errors are assigned for reversal of the case. The first is that the court erred in overruling his motion for a continuance on account of the absence from the jurisdiction of the witness, Marion Smith, who was in the employ of the appellant in his grocery store in Van Buren at and prior to the time the offense was charged to have been committed. The indictment was returned on July 5, 1928, but appellant was not put to trial until November 28, 1928. It was alleged in the motion for a continuance, that Smith was ill in a hospital in Kansas City, Mo., and had been since about October 1st, and the certificate of the physician showed that his condition was such that he would have to remain some months longer. Appellant waited until November 23d, five days before the date of trial, at a time when he knew the absent witness was out of the jurisdiction, to have a subpœna issued for him. We think there is no sufficient showing of diligence to entitle appellant to a continuance. He could have had a subpœna issued and served on the witness long before he left the jurisdiction, and he had ample time after the witness left the jurisdiction to have determined whether the witness would be available for the trial, and, if not, to have taken his deposition. It is a well-established rule of this court that matters of continuance rest in the sound discretion of the trial court, and that this court will not reverse for the refusal to grant a continuance, in the absence of a positive abuse of such discretion. Thompson v. State, 26 Ark. 323; Adams v. State, 176 Ark. 916, 5 S.W.(2d) 946, and cases there cited. And no abuse of discretion can be relied on where it appears that the party has not used due diligence to procure the attendance of such witness, or to obtain his testimony. Many cases are cited under section 3129, C. & M. Digest, regarding the necessity of diligence in efforts to secure the attendance of witnesses, and many more might be cited subsequent thereto. Moreover, an examination of the allegations in the motion as to what the absent witness would testify as compared with the other evidence in the case shows that his testimony, if present, would have been merely cumulative, and another well-established rule of this court is, that it is no abuse of discretion of the trial court to deny a motion for continuance where the testimony of the absent witness is cumulative to the testimony of other witnesses. Sneed v. State, 47 Ark. 180, 1 S. W. 68; Maxey v. State, 66 Ark. 523, 52 S. W. 2; Moon v. State, 164 Ark. 486, 262 S. W. 658; Adams v. State, supra. No abuse of discretion having been shown on the part of the trial court, we cannot reverse on this assignment.

Appellant next discusses the insufficiency of the testimony, and the lack of corroboration of the witness, Merritt Knight, who admittedly burglarized the Frisco Railroad's warehouse and stole a quantity of merchandise, including the coffee in question. It is argued that there is no proof to show that appellant knew the coffee was stolen at the time it is claimed the coffee came into his possession. In this connection, appellant requested instructions numbered 1, 2, and 3, all to the effect that appellant could not be convicted of the charge of receiving stolen property unless the state had proved to the satisfaction of the jury, beyond a reasonable doubt, that the defendant knew that the said property had been stolen. These instructions were covered by the court in an instruction given on its own motion, as No. 2, to the effect that, before the jury would be justified in convicting the appellant, they must find beyond a reasonable doubt: "First. That the property was stolen; second, that it belonged to the party alleged in the indictment; third, that this defendant, himself, received it in his possession; fourth, that when he received it he did so with the knowledge that it had been stolen; fifth, that he had the intention at the time he received it to deprive the true owner of his property...