Figeroa v. State, 5325

• Decision Date: 25 March 1968
• Docket Number: No. 5325,5325
• Citation: 425 S.W.2d 516,244 Ark. 457
• Parties: Jose FIGEROA, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 516

425 S.W.2d 516

244 Ark. 457

Jose FIGEROA, Appellant, v. STATE of Arkansas, Appellee.

No. 5325.

Supreme Court of Arkansas.

March 25, 1968.

Harry C. Robinson, No. Little Rock, for appellant.

Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

This is an appeal from the judgment of the Pulaski County Circuit Court convicting appellant of the crime of assault with intent to kill. The record reveals that, on the day set for trial, counsel for appellant requested a continuance for the alleged reason that, as appellant was of Mexican descent and unable to testify in his own behalf, additional time was needed to secure the assistance of an interpreter. The trial court overruled this motion. Following the presentation of the State's evidence, the appellant rested without offering any evidence, and the court, sitting as a jury, found appellant guilty of the crime as charged.

For reversal the appellant alleges that the trial court erred in overruling his motion for a continuance and that there is no substantial evidence to support the verdict. These points will be discussed in the order mentioned.

I

Whether a case should be continued or not is generally a matter resting within the sound discretion of the trial court, and unless it clearly appears that the refusal to grant a continuance is an abuse of discretion so as to operate as a denial of justice, the trial court's action does not constitute a ground for a new trial. Allison v. State, 74 Ark. 444, 86 S.W. 409; Smith v. State, 219 Ark. 829, 245 S.W.2d 226. Absent a showing by the moving party that he has 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 37.

While it is fundamental that a defendant in a criminal prosecution should be afforded the opportunity to testify in his own behalf, to be confronted with adverse witnesses and to call witnesses in defense of the charges against him, we find that the trial court committed no error in refusing to grant a continuance in this case. The appellant has made no attempt to show the exercise of due diligence on his part. No evidence has been offered to establish his alleged inability to speak or understand the English language. Further, there is no showing in the record before us that appellant was diligent in seeking the services of an interpreter. On the contrary, the record reflects that from the time of his plea of guilty on April 4, 1966, until the date of his trial on July 19, 1967, appellant was before the court with his attorney ¹ no fewer than three times. On no occasion, prior to the day of the trial, was it suggested to the court by appellant or his attorney that an interpreter would be required for his defense. Finally, although appellant and his counsel were apprised on June 19, 1967, that the trial would be held on July 19, there is no showing of any effort to obtain the assistance of an interpreter, either at the time the trial date was set or during the following month. On this state of the record, we cannot say that due diligence has been exercised.

II

Appellant next contends that the evidence was not legally sufficient to support a finding that he intended to kill the complaint by his act. The State's evidence consisted wholly of the testimony of officer Lester Hall of the Little Rock Police Department. According to his report and testimony, he received a call to a disturbance at the T-Bone Inn on the David O. Dodd Road. Upon his arrival there he saw appe...