Jackson v. State

• Decision Date: 21 February 1891
• Citation: 15 S.W. 607,54 Ark. 243
• Parties: JACKSON v. STATE
• Court: Arkansas Supreme Court

15 S.W. 607

54 Ark. 243

JACKSON v. STATE

Supreme Court of Arkansas

February 21, 1891

APPEAL from Sebastian Circuit Court, Fort Smith District, T. C HUMPHRY, Judge.

Judgment affirmed.

The appellant pro se.

J. B McDonough, Prosecuting Attorney, and W. E. Atkinson, Attorney General, for appellee.

OPINION

MANSFIELD, J.

Will Jackson was tried in the circuit court of Sebastian county for the Fort Smith district on an indictment for murder in the first degree, committed by taking the life of Ida Dean. The jury found him guilty as charged, and he moved for a new trial. This having been denied, judgment of death was pronounced against him, from which he has appealed.

Of the assignments of error made in the appellant's motion for a new trial, only two have been argued and insisted upon here. These relate to the action of the court in refusing to grant the defendant a continuance and in denying his application for a change of venue. The killing occurred in the city of Fort Smith, on the 2d day of June, 1890, and the indictment was found two days later. On the 11th day of the same month, the gentlemen through whose services this appeal has been prosecuted were assigned as the defendant's counsel in the court below. On the day following their appointment they filed a motion asking the court to continue the cause until the next term. The grounds of this application, as stated, were that the defendant's counsel had not had sufficient time to prepare for his trial, and that four material witnesses in his behalf were absent. The motion stated that in the summer of 1888 the defendant suffered a severe sunstroke, which at times, and especially when he was under the influence of strong stimulants, rendered him so far unconscious that he was wholly unable to distinguish right from wrong; that, at the time of the killing, and prior thereto, he was under the influence of beer and whisky to such an extent that by reason of the effect of said sunstroke he became wholly unconscious of the nature of his acts; that he expected to prove by the absent witnesses, whose names were given, and who, it was stated, resided in the Indian territory, that he received the sunstroke referred to, and that at times since then they had known him to become apparently unconscious--sometimes from overheat, and several times after having used apparently but a small quantity of liquor. The application concluded with a statement that it was true, and that the defendant believed he would be able to procure the testimony of the absent witnesses by the next term of the court, and that he knew of no other witnesses by whom he could "so well prove the foregoing facts." The motion, which was sworn to by the prisoner, was filed and overruled on the 12th day of June. The cause was not, however, then called for trial, but was set for trial on the 20th day of the same month.

In Thompson v. State, 26 Ark. 323, it was held that continuances in criminal as well as in civil cases are as a general rule, within the sound discretion of the court, and that a refusal to grant a continuance "is never ground for a new trial, unless it clearly appears to have been an abuse of such discretion, and manifestly operates as a denial of justice." In this case the appellant's application does not state how far the absent witnesses resided from the place of trial, and there is nothing in the record to show that their testimony might not have been procured in the interval between the day when the continuance was refused and that on which the trial began, nor whether any effort was made to secure it. It is true that the application states that the witnesses were beyond the jurisdiction of the court in which the indictment was pending. But one of the witnesses, George Brown, subsequently appeared, and testified on the hearing of the application for a change of venue, and if the voluntary attendance of the others could not have been procured, and they were as stated non-residents, their depositions might have been taken under the statute. (Mansf. Dig., sec. 2146; Gibony v. Rogers, 32 Ark. 462). And if remoteness of residence or other circumstance existed to prevent the appellant from obtaining their depositions, that fact might also have been submitted for the consideration of the court by setting it forth in the motion. It will also be observed that the motion does not say that there were not other witnesses by whom the same facts could be proved, but only that defendant knew of no others "by whom he could so well prove them." George Brown was present on the day the trial began, and does not appear to have been called as a witness, except to testify on the application for a change of venue. Four...