Cathey v. State
| Decision Date | 22 November 1937 |
| Docket Number | Crim. 4069 |
| Parties | CATHEY v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Cleveland Circuit Court; DuVal L. Purkins, Judge affirmed.
Judgment affirmed.
George H. Holmes, Hendrix Rowell and Jay W. Dickey, for appellant.
Jack Holt, Attorney General, and John P. Streepey, Assistant, for appellee.
Appellant was convicted of the crime of voluntary manslaughter and sentenced to serve four years in the penitentiary. All assignments of errors brought forward in the motion for a new trial are abandoned except No. 4, that "The court erred in overruling defendant's motion for a continuance, over the objections and exceptions of the defendant."
Appellant was one of a group of young men who engaged in a carousal in front of the home of Will Franklin, near the little town of New Edinburg, early in the evening of July 16, 1937. Lamar Reeves was cut, and died several hours later at Franklin's home, where he had been carried immediately following the affray.
Appellant was arrested the following morning, and on July 22 was arraigned on a charge of first degree murder. The case was called for trial on July 28, and after the state had announced ready the defendant moved for a continuance on the ground that Dr. E. B. Dunman, a material witness, was temporarily without the jurisdiction of the court, and that, without fault of the defendant, he could not be subpoenaed. Dr. Dunman had gone to California for a short vacation.
The motion for continuance was made orally, one of the attorneys for the defendant having stated what facts could be proved by the absent witness. The court ruled that the oral motion might be reduced to written form during the progress of the trial and filed as a part of the record. The motion was thereupon overruled and the trial proceeded, the defendant having saved his exceptions.
On July 29, the second day of the trial, after witness in chief for the state had testified and had been cross-examined, the written motion for continuance was presented. The court found that certain statements as to facts which it was claimed Dr. Dunman would testify to had not been mentioned in the oral motion, and ruled that all matters presented in the oral motion might be read to the jury as the evidence of Dr. Dunman, but that alleged facts to which the doctor would testify which were not incorporated in the oral statements should be excluded, and to the exclusion of such statements the defendant saved exceptions.
We are of the opinion that if the motion, as finally written, had been presented to the court when the case was called, the facts alleged therein would have been sufficient to require a continuance, provided the defendant had...
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