Jefferson v. State

• Decision Date: 25 January 1909
• Parties: JEFFERSON v. STATE
• Court: Arkansas Supreme Court

115 S.W. 1140

89 Ark. 129

JEFFERSON v. STATE

Supreme Court of Arkansas

January 25, 1909

Appeal from Monroe Circuit Court; Eugene Lankford, Judge; affirmed.

Judgment affirmed.

H. A Parker, for appellant.

Sickness of counsel for a party, or that of a member of his family compelling his absence from the court, is a well recognized ground of continuance, and appellant's motion for a continuance on that ground should have been granted. Hayne on New Trials, 182-3, and cases cited; 28 N.W. 79; 26 S.W. 60; 106 Ga. 108; 11 Pet. 226; 8 Phila. 342; 86 Va. 835; 10 La 97; 56 Ga. 406; 36 Ia. 166.

William F. Kirby, Attorney General, and Daniel Taylor, Assistant, for appellee; C. A. Cunningham, of counsel.

1. The jury are the sole judges of the weight and credibility of the evidence, and their verdict will not be disturbed unless there is a total want of evidence to support it. 15 Ark. 403; 23 Ark. 61; 14 Ark. 20.

2. Continuances because of absence of counsel, as for other causes, is in the discretion of the court, and the court's action will not be disturbed unless this discretion is abused. Hayne on New Trials and Appeal, 183-4; Id. 122; 9 Cal. 212.

OPINION

MCCULLOCH, J.

Appellant seeks, on two grounds, to reverse a judgment of conviction of the crime of grand larceny; first, that the court overruled a motion for continuance, and, next, that the evidence is not sufficient to sustain the verdict.

The indictment was returned about two years before the trial below, and the case had been continued several times on motion of the State. The case had been put on trial at a former term, and a mistrial had been entered on account of the failure of the jury to agree. The attorney who had represented appellant was absent from the State on account of illness of his wife, and on the first day of November, 1908, term of the court the motion was presented by appellant for continuance on this account. The motion was overruled by the court, and the case set for trial on the next day, when another attorney appeared for appellant and proceeded to trial without further effort to secure delay. No postponement was asked, either to procure witnesses or to enable the attorney, Mr. Parker, to prepare himself for the trial. The only motion made for a postponement of the trial was that the trial should be postponed until the next term so that Mr. Chapline, the attorney who formerly represented appellant, could return and take charge of the case. The question of postponing the case until the next term was a matter largely in the discretion of the court, and we can not say that the court abused its discretion in refusing to grant the continuance. We can see how the court, out of consideration for both litigant and attorney, might have continued the case so that the attorney who had received a fee and who had familiarized himself with the case could attend and conduct the trial, but some latitude in those matters must be left to the trial judge in the exercise of a fair discretion.

The indictment in the case accuses appellant of having stolen a diamond ring of the value of fifty dollars, the property of Mrs. E. J Smith, who resided in...