Burt v. State
| Decision Date | 24 September 1923 |
| Docket Number | 128 |
| Citation | 256 S.W. 361,160 Ark. 201 |
| Parties | BURT v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Conway Circuit Court; J. T. Bullock, Judge; affirmed.
Judgment affirmed. Judgment of affirmance set aside, and for error reversed and cause remanded.
Gordon & Combs, for appellant.
J. S Utley, Attorney General, and John L. Carter, Assistant, for appellee.
Appellant was charged with incest, and his trial resulted in a conviction, and for the reversal of the judgment the only error insisted upon is that the court erred in refusing to grant a continuance for the term on account of the absence of a witness, Mrs. May Bradford.
The motion for continuance recited that this witness was present when the alleged offense was committed, and that she could see and did see the defendant at the time of the alleged commission of the offense, and knew that he did not commit the crime charged. The motion recited that this witness had been subpoenaed, but was unable to attend court on account of illness, and that defendant could and would have had her in attendance at the next term of court. The court overruled the motion for a continuance, but permitted the defendant to read the motion as a deposition of the witness, and defendant excepted.
We have many times held that the matter of granting or refusing continuances rested largely in the discretion of the trial court, and that a judgment would not be reversed on account of the refusal to grant a continuance unless there had been an abuse of this discretion.
In this case the court convened on the first Monday in March, which was March 5th. Appellant had been indicted at the previous October term of the court, and had been arrested January 6, 1923, at which time he gave bond. Defendant had therefore had ample time to prepare for trial, and to know the location and condition of his witnesses. The motion for continuance was sworn to on March 9 by the defendant and filed in open court on March 10, when the case was called for trial. This was during the first week of the term. There was no statement as to the nature or character of the illness of the witness, the motion being silent as to the beginning or probable duration of the illness, and there was no showing that the witness might not have been able, later in the term, to attend court, the only showing on the subject being the statement in the motion "that said witness is unable to attend court on account of illness."
There was no explanation of the absence or more definite information concerning the illness of the witness, nor was there any request that time or opportunity be given to make a more definite showing. Under these circumstances we are unwilling to say that the court abused its discretion in refusing to continue the case for the term. Clark v. State, 155 Ark. 16, 243 S.W. 865; Barling v. State, 143 Ark. 164, 219 S.W. 1021.
No error appearing, the judgment is affirmed.
SMITH, J., (on rehearing).
A petition for rehearing has been filed, in which our attention is called to the amended record brought up by certiorari. The original brief of appellant was filed on July 23, and the motion for continuance was copied in full therein, but there was no showing as to the proceedings relating thereto, except that it was overruled. The brief of the State was filed on August 7, and it was there insisted that a proper showing to obtain a continuance had not been made.
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Morgan v. State, CR
...not a discretion that can be exercised arbitrarily. King v. State, 177 Ark. 812, 815, 7 S.W.2d 987, 988 (1928); see also Burt v. State, 160 Ark. 201, 256 S.W. 361 (1923); cf. Wood v. State, 159 Ark. 671, 252 S.W. 897 (1923) (holding that the denial of the motion for a continuance was not an......
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Lewis v. State
...of its truthfulness and the motion for continuance had been denied on that account, then error would have been committed. Burt v. State, 160 Ark. 201, 256 S.W. 361. Where the court in the first instance finds that a defendant is entitled to a continuance, it is an abuse of discretion to ove......
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