Duke v. State, 284.

• Court: Arkansas Supreme Court
• Writing for the Court: Kirby
• Citation: Duke v. State, 38 S.W.2d 764, 183 Ark. 1153 (Ark. 1931)
• Decision Date: 11 May 1931
• Docket Number: No. 284.,284.
• Parties: DUKE v. STATE.

38 S.W.2d 764

DUKE v. STATE.

No. 284.

Supreme Court of Arkansas.

May 11, 1931.

Appeal from Circuit Court, Hempstead County; Dexter Bush, Judge.

One Duke was convicted for arson, and he appeals.

Affirmed.

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

KIRBY, J.

This appeal is prosecuted from a judgment of conviction of appellant for the crime of arson for the burning of the Wellsville Baptist Church in Hempstead county. No abstract or brief has been filed on behalf of appellant.

The motion for a new trial alleges, as grounds, the denial of appellant's motion for a continuance for an absent witness, one Harmon Stewart, and the verdict is challenged as not being supported by sufficient testimony. The motion for a new trial is in regular form alleges that the absent witness was a material one and would testify, if present, that an attempt was made to burn the church prior to the time it was burned and when appellant was not residing in the state; that the evidence against the defendant is circumstantial, and on that account the testimony of the absent witness was most material, as it would tend to show that some one else had a motive for destroying the church and none had been shown to be entertained by appellant. Evidence was heard on the motion.

The deputy sheriff testified that he had a subpœna for the witness, Stewart, but had no knowledge of where he might be found except what he had been told. That the brother of Stewart was in court and might be able to furnish the information. The subpœna for the witness was delivered to him Saturday night, and he made an immediate effort to serve it and discovered that the witness had been gone since the Tuesday before.

Elmer Stewart testified that his brother, who was desired as a witness, went off and did not say where he was going when he left. That he is not married and had lived at witness' house most of the year; just stayed around here and yonder and lived at his father's house part of the time. The father lived at Wesson, Ark., near the Louisiana line. His brother said something about trying to find a job the morning he left.

There was no showing that there was any probability of procuring the testimony of or finding the absent witness within the jurisdiction of the court for the trial at the next term and no abuse of discretion shown in the court's refusal to grant it. Bryan v. State, 179 Ark. 216, 15 S.W.(2d) 312; Eddy v. State, 165 Ark. 289, 264 S. W. 832; Harris v. State, 169 Ark. 627, 276 S. W. 361; Old American Ins. Co. v. Hartsell, 176 Ark. 667, 4 S.W.(2d) 25; Edwards v. State, 180 Ark. 363, 21 S.W. (2d) 850.

The church was burned early in the morning of June 5, 1930, before daylight, and there had been no fire in it the day before or the night before its destruction; it being summertime. After daylight the witnesses, who discovered the fire and came to the building, made an investigation and found some peculiar tracks appearing to have been made by a person wearing socks stretched over shoes. These tracks were discovered near the church, and then down the Military road in front of it and on down the road to within a few steps of appellant's house. The tracks were apparently fresh and recently made and were easily...