Coppersmith v. State

• Decision Date: 26 September 1921
• Docket Number: 115
• Citation: 233 S.W. 777,149 Ark. 597
• Parties: COPPERSMITH v. STATE
• Court: Arkansas Supreme Court

233 S.W. 777

149 Ark. 597

COPPERSMITH v. STATE

No. 115

Supreme Court of Arkansas

September 26, 1921

Appeal from Garland Circuit Court; Scott Wood, Judge; affirmed.

Judgment affirmed.

B H. Randolph, J. A. Stallcup and A. J Murphy, for appellant.

The motion for continuance should have been sustained. § 10 Art. 2, Const. 1874; 71 Ark. 182; 99 Ark 398; 21 Ark. 461.

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

1. Instruction No. 6 given by the court did not assume that Piovia's evidence tended to show that defendant was connected with or interested in the gambling place, such assumption having been eliminated by the qualifying clause used by the court; but, if he thought it assumed such fact, defendant should have made specific objection. 136 Ark. 272.

2. Instruction No. 6 requested by the defendant was erroneous in assuming that the indictment for operating a gambling house included the lesser offense of gaming. 14 R. C. L. § 53, p. 211; 22 Cyc. 481.

Sections 2632 and 2639, Crawford & Moses' Digest, provide punishment for two separate and distinct offenses.

3. There was no abuse of discretion in denying the motion for continuance. 130 Ark. 245; Id. 592; 133 Ark. 239; 130 Ark. 149; 218 S.W. 170.

OPINION

MCCULLOCH, C. J.

The indictment against appellant returned by the grand jury of Garland County is for the offense of operating a gambling house in the city of Hot Springs. It is charged in the indictment that the gambling was conducted in a room, mentioning the number of the room, in a certain hotel in the city of Hot Springs.

When the case was called for trial, appellant presented a motion for continuance in order to procure the attendance of two absent witnesses, George Brown and Whitey Jackson, and the ruling of the court in refusing to postpone the trial is the principal assignment of error urged here for reversal of the judgment. It is stated in the motion that each of the two witnesses would testify, if present, that the room in question was rented and occupied as a bedroom by Brown, and that appellant did not occupy the room for any purpose nor operate a gambling game therein. It appears from the record and from the recitals of the motion for continuance that the indictment against appellant was returned by the grand jury on the 27th day of January, 1921, and that on March 24, 1921, the court set the case down for trial on April 5, a subpoena being issued on that date for each of said witnesses. Brown was a resident of Garland County, and Jackson was a resident of Pulaski County, and the subpoenas were issued respectively to those counties, but were subsequently returned unserved.

Appellant alleged in his motion that the said witnesses were temporarily absent from their respective places of residence; that he had heard of their being in El Dorado, Arkansas, and had sent a subpoena to Union County, but that the same had not been returned up to the day of the trial. The motion contained a formal statement that the witnesses were temporarily absent, and that their attendance upon the trial at a later date could be procured; that their absence was without the procurement or connivance of appellant, and that he could not establish the facts recited by any other witness. The court overruled the motion, and on a trial of the cause there was a conflict in the testimony as to who operated the gambling game in the room mentioned. There was testimony adduced by the State tending to show that appellant occupied the room and operated the game, and, on the other hand, there was testimony introduced by the appellant tending to show that he had nothing to do with the operation of the game, but that the room was occupied by Brown, and that Brown operated the game. We are of the opinion that the court was correct in finding that appellant had not exercised proper diligence entitling him to a continuance of the cause.

Appellant was not justified in waiting until the case was set for trial in preparing his cause and in having his witnesses summoned. The indictment was returned and appellant was arrested on January 27, but, according to his own statement, he did...