Hayes v. State

• Decision Date: 15 March 1920
• Docket Number: 245
• Citation: 219 S.W. 312,142 Ark. 587
• Parties: HAYES v. STATE
• Court: Arkansas Supreme Court

219 S.W. 312

142 Ark. 587

HAYES v. STATE

No. 245

Supreme Court of Arkansas

March 15, 1920

Appeal from Washington Circuit Court; W. A. Dickson, Judge affirmed.

Judgment affirmed.

W. A Ratterree and John P. Roberts, for appellant.

1. The court erred in overruling the motion for continuance on account of the absence of a material witness. Defendant had used due diligence to procure the attendance of the witness. 100 Ark. 301; 110 Id. 251; 129 Id. 299; 140 S.W. 8.

2. The court erred in manifesting an interest in the trial by taking charge of and examining defendant while on the stand.

3. The court erred in instructing the jury after they had retired and came back into court and the questions asked by the judge were prejudicial.

4. The court erred in overruling defendant's motion for new trial for newly discovered evidence and surprise. 26 Ark 496; 92 Id. 519; 103 Id. 589; 148 Id. 371; 30 Id. 723; 60 Id. 643; 40 S.W. 126; 37 L. R. A. 659.

5. The court erred in refusing to let J. H. Smith, witness, answer the question contradicting John Barnett.

6. The court erred in giving instruction No. 1 on its own motion. Kirby & Castle's Digest, § 6021 et seq.

John D. Arbuckle, Attorney General, and J. B. Webster, Assistant, for appellee.

1. There was no error in overruling the motion for continuance. Due diligence was not alleged nor shown. 71 Ark. 62; 94 Id. 169. It is an abuse of discretion to deny a continuance on account of a nonresident witness. 103 Ark. 509; 90 Id. 384; 110 Id. 402. No proper foundation was laid, and there was no abuse of discretion by the court. 57 Ark. 168; 41 Id. 153; 79 Id. 594.

2. The court did not manifest an undue interest in the trial by examining defendant on the stand nor in instructing the jury after they retired and came back. 84 Ark. 95; 86 Id. 360.

3. The motion for new trial was properly overruled. The grounds were not sufficient. 66 Ark. 620; 55 Id. 567; 57 Id. 60; 69 Id. 546.

4. There was error in refusing John Smith to answer question asked. 7 Enc. of Ev., p. 17; Kirby's Dig., § 3138, as amended by act of 1905; Enc. of Ev., vol. 7, p. 173; 53 Ark. 390.

5. No error in giving instruction No. 1 on the court's own motion. 84 Ark. 95; 86 Id. 360.

OPINION

MCCULLOCH, C. J.

Appellant was indicted by the grand jury of Washington County for the offense of selling whiskey, alleged to have been committed in that county on July 17, 1918, and the proof adduced by the State tended to show that appellant sold twenty-four pints of whiskey to John Barnett at the town of Winslow, in Washington County, in the evening of the day mentioned in the indictment.

The State relied on the testimony of Barnett and his son, Joe, who both testified that they were present when appellant sold and delivered the whiskey. Appellant was, according to the testimony, driving through the country in an automobile and stopped on the street at Winslow and took the whiskey out of his automobile and sold and delivered it to Barnett.

Appellant filed a motion for continuance for the purpose of procuring the attendance of a witness named Budd, who it was alleged in the motion would testify, if present, that Joe Barnett told him that appellant was not the man that sold the liquor to his father at Winslow. There was no statement in the motion as to where the absent witness was at that time, nor that the attendance of the witness could be procured at the next term of the court.

The court was correct in refusing to postpone the trial under those circumstances.

The next ground urged for reversal of the judgment is that the court erred in refusing to permit appellant to prove by witness, J. H. Smith, a justice of the peace, that Barnett had signed and sworn to a statement admitting that he had testified falsely with respect to the sale of whiskey by appellant. The proper foundation was laid for the contradiction, but the record does not show what the answer of the witness would have been if the court had not refused to allow the question to be asked. The record merely shows that appellant's counsel propounded to Smith the question whether or not Barnett had come before him and signed the written statement as aforesaid. In order to show that the error was prejudicial, it is essential to disclose in the record what the testimony of the witness on that subject would have been if permitted to answer.

The court, over the objection of appellant, asked appellant several questions during the progress of the latter's cross-examination by the prosecuting attorney, and this is assigned as error. It does not appear from the record that the conduct of the court in propounding questions had any tendency to carry to the minds of the jury the court's view as to appellant's guilt or innocence, and there was no error merely in the fact that the court propounded the questions to the accused, or other witness in the case, for the purpose of eliciting all of the facts of the case.

In the first instruction given by the court the question was submitted of appellant's guilt or innocence of the charge embraced in the indictment of selling whiskey "within three years before the indictment was filed." The contention is that, as the trial of the case was less than three years after the enactment of the statute making the sale of intoxicants a felony, it was error to allow the jury to consider sales made at any time within three years. The answer to this is that there could not have possibly been any prejudice resulting from this statement of the court for the reason that the testimony was directed to a particular sale made on a certain...