Bullard v. State
| Decision Date | 25 June 1923 |
| Docket Number | 69 |
| Citation | 252 S.W. 584,159 Ark. 435 |
| Parties | BULLARD v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Cross Circuit Court; G. E. Keck, Judge; affirmed.
Affirmed.
J C. Brookfield, for appellant.
The court erred in not granting a continuance. The evidence is not sufficient to sustain the verdict. The court erred in refusing appellant's requested instruction No. 1.
J S. Utley, Attorney General, John L. Carter and Wm. T. Hammock, Assistants, for appellee.
No diligence was shown in attempting to procure the attendance of the witnesses, and the motion for continuance should have been overruled. 110 Ark. 409; 130 Ark. 592; 133 Ark. 239; 94 Ark. 169. The evidence is sufficient to support the verdict. 132 Ark. 97; 135 Ark. 145; 120 Ark. 312; 104 Ark. 174. The instruction complained of singled out a particular phase of the evidence and instructed the jury as to the weight to be given it, and no error was committed in refusing to give it. 145 Ark. 165; 114 Ark. 243.
This is an appeal from a judgment sentencing the appellant to imprisonment in the State Penitentiary for a period of one year, on an indictment the charging part of which it as follows: "In the county aforesaid, on the 12th day of October, 1922, the said Polk Bullard did unlawfully and feloniously keep in his possession a still, without registering the same with the proper United States officer against the peace and dignity of the State of Arkansas."
The appellant moved for a continuance on account of the absence of two witnesses, Addie Smith and Ray Hambrick. The motion was in proper form, and sets up that the indictment was returned against the appellant on February 6, 1923; that J. C. Brookfield was employed as his attorney; that by agreement with the prosecuting attorney on that day the cause was continued until the following Monday to enable appellant's attorney, who was a member of the Legislature, to return to his duties at Little Rock; that the attorney returned to court on the day of trial, and found that no witnesses for the defendant had been summoned; that the attorney thereupon caused subpoenas to be issued for Smith and Hambrick, who were within the jurisdiction of the court, and that the defendant was put to trial without said witnesses and without sufficient time being granted to the sheriff to summon said witnesses. The motion then set forth the facts which the defendant expected to prove by the witnesses, which were material.
The court overruled the motion, and did not err in so doing, because the appellant fails to show that he had exercised proper diligence to obtain the absent witnesses. Neither the appellant nor his attorney asked that subpoenas be issued for the witnesses before the day of the trial. This he could and should have done. Sheptine v. State, 133 Ark. 239, 202 S.W. 225; Jackson v. State, 94 Ark. 169, 126 S.W. 843.
The appellant contends that the evidence is not sufficient to sustain the verdict. The officers who searched the premises of appellant's mother, where appellant resided, stated that they searched the barn and found a copper still in the corn-crib, covered up with shucks. There was what they called a worm with it, and the outfit that sits on a stove--that is a cooker. It looked like it had been used. In talking to the appellant about it he said he found it over in a creek somewhere near his place. He stated that he brought it home and intended to cut it up and put the copper around his stove- pipe, that he was building or remodeling. The officers looked around and found another one in the weeds in the corner of the yard, twenty or thirty feet from the house. That was of the milk-can variety--looked like a five-gallon milk- can. There was a worm there. They also found a quart fruit jar of whiskey fifteen feet from this second still. Appellant stated that he found both stills in the creek. They also found a barrel of mash--two gallons in a keg in the garden near the house--about a thirty-gallon keg. This keg was concealed...
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Blanton v. State
...exercised due diligence, the trial court will not be held to have abused its discretion in refusing to grant the motion. Bullard v. State, 159 Ark. 435, 252 S.W. 584; Bowman v. State, 213 Ark. 407, 210 S.W.2d 798; Gerlach v. State, 217 Ark. 102, 229 S.W.2d We hold that the trial court did n......
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Wacaster v. State
... ... and 23. Instructions B and F were argumentative, and, in ... effect, amounted to instructions upon the weight of the ... testimony, telling the jury what importance should be ... attached to the evidence or lack of evidence, which this ... court has said should not be done. Bullard v ... State, 159 Ark. 435, 252 S.W. 584. Moreover, these ... instructions were fully covered by instructions numbered 16, ... 17, 18, 22 and 23, given by the court ... Instruction ... No. 4, refused, was likewise fully covered by instruction No ... 20, correctly given by ... ...
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Babers v. State
...to it. Under our Constitution it is for the jury and not the court to decide upon the weight to be given to the evidence. Bullard v. State, 159 Ark. 435, 252 S. W. 548, and Fields v. State, 154 Ark. 188, 241 S. W. Another assignment of error is that the court erred in allowing a witness to ......
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Weiderman v. United States
...upon this point, in which certain facts in testimony were particularized. It was not error to refuse that instruction. Bullard v. State, 252 S. W. 584, 159 Ark. 435. 3. The third error urged is based upon what occurred after the jury had been instructed, had retired, and had deliberated. Th......