Lacy v. State

• Citation: 9 S.W.2d 314
• Decision Date: 24 September 1928
• Docket Number: (No. 142.)
• Parties: LACY v. STATE.
• Court: Supreme Court of Arkansas

Page 314

9 S.W.2d 314

LACY v. STATE.

(No. 142.)

Supreme Court of Arkansas.

September 24, 1928.

Rehearing Denied October 22, 1928.

Appeal from Circuit Court, Independence County; John C. Ashley, Special Judge.

Pat Lacy was convicted of assault with intent to kill, and he appeals. Affirmed.

Coleman & Reeder and S. M. Casey, all of Batesville, for appellant.

H. W. Applegate, Atty. Gen., and Walter L. Pope, Asst. Atty. Gen., for the State.

McHANEY, J.

Appellant was indicted at the October term, 1927, of the Independence circuit court of the crime of assault with intent to kill one Kent Davidson by shooting him with a pistol. At the April term of said court, six months later, after both parties had announced ready for trial, this indictment was quashed on motion of the state and the matter again referred to the grand jury, then in session; another indictment, charging the same offense, was shortly thereafter, on the same day, returned. The first indictment omitted to charge that the offense was committed "with the felonious intent then and there to kill and murder the said Kent Davidson," which the second indictment properly covered. Appellant was called upon to answer the second indictment, shortly after its return, on the same day, and moved the court for a continuance on account of the shortness of the time intervening between the finding and return of the second indictment and the calling of his case for trial, which was alleged to be 30 minutes, and for that reason he was not ready or prepared for trial and was entitled to a reasonable time in which to prepare for trial; that the first indictment did not charge an offense against the law; that without his knowledge or consent the first indictment was quashed and a new indictment returned within 30 minutes, and that he was not prepared for trial. His motion for continuance was overruled. He was tried, convicted, and sentenced to five years in the penitentiary. He seeks a reversal on the following grounds:

First. That the court erred in overruling his motion for a continuance or a postponement of his trial to another day of the same term. The court did not err in this regard. His motion stated no legal ground for either a continuance or a postponement. Motions for continuance rest in the sound discretion of the trial court and the settled rule is that this court will not reverse on this ground unless an abuse of such discretion is shown. No such abuse of discretion is shown. The case had been pending for six months and appellant well knew that he was charged with the same offense alleged in the second indictment. In the opinion of the learned prosecuting attorney, it was deemed best to amend the first indictment in the manner heretofore stated by charging the intent. Whether this was necessary or otherwise we are not called upon to decide. He does not allege any statutory ground for a continuance, and we therefore hold that the court did not commit reversible error in this regard.

Second. That the verdict and judgment are against the law and the evidence. Counsel for appellant concede the well-established rule of this court that it will not reverse cases on conflicting evidence, that is, where there is any substantial evidence to support the verdict, but say that the accomplice, Leland Sexton, has not been corroborated sufficiently. The facts are that Kent Davidson was paying court to Miss Madeline Barnes, and, on the night of the unfortunate assault upon him, was calling upon her in her home. Appellant and Sexton, at appellant's suggestion, went to the Barnes home to scare him and have some fun out of...