Laster v. State

• Court: Arkansas Supreme Court
• Writing for the Court: HUMPHREYS, J.
• Citation: Laster v. State, 237 S.W. 91, 151 Ark. 608 (Ark. 1922)
• Decision Date: 06 February 1922
• Docket Number: 138
• Parties: LASTER v. STATE

237 S.W. 91

151 Ark. 608

LASTER v. STATE

No. 138

Supreme Court of Arkansas

February 6, 1922

Appeal from Mississippi. Circuit Court, Chickasawba District; R. E L. Johnson, Judge; affirmed.

Judgment affirmed.

G W. Barham, R. Duncan and E. E. Alexander, for appellant.

The court erred in refusing a continuance of the case to procure the witnesses for appellant, and also in refusing to permit appellant to relate the state of feeling existing between himself and Martin.

J S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.

Appellant's motion for continuance was not verified until after the trial and judgment and was properly overruled. Logan v. State, ms. op.; 15 Ark. 252. Appellant did not exercise due diligence in procuring the attendance of his witnesses. Coppersmith v. State, 149 Ark. 597.

The testimony complained of by appellant as being refused by the court was not competent, nor such testimony as could be brought out on cross-examination. 16 Ark. 568; 132 Ark. 518. Before one can complain of excluded testimony, he must first show what such testimony would have been. 87 Ark. 123; 88 Ark. 362; 133 Ark. 599.

OPINION

HUMPHREYS, J.

Appellant was indicted, tried and convicted in the Mississippi Circuit Court, Chickasasawba District, for the crime of arson for unlawfully, feloniously, wilfully and maliciously burning a barn, the property of T. F. Martin, and as a punishment therefor was adjudged to serve a term of seven years in the State penitentiary. From the judgment of conviction an appeal has been duly prosecuted to this court.

The indictment was returned against appellant at the April, 1921, term of the court. He was arrested on the 11th day of April following, and at the July term thereafter the cause was continued on his application until the regular term of court which convened on the 31st day of October, 1921.

An alibi was interposed by appellant as a defense to the charge, and after the continuance of the cause at the adjourned term he had subpoenas issued and served upon certain witnesses for the purpose of establishing his defense. On the first day of the October term, which was the 31st day of October, appellant filed the following motion for a continuance until the next term of court:

"The defendant, J. B. Laster, prays the court to grant him a continuance in the above cause until the next term of this court, and for the grounds thereof says: That J. Jones and Della Jones, Jim Davis and Lizzie Davis are material witnesses for the defendant, and if present would testify that they were at the home of J. B. Laster on the night that Tom Martin's barn burned, and that J. B. Laster was at home during the entire time engaged in playing the graphophone. The defendant knows said fact to be true.

"The defendant is basing his defense upon an alibi.

"The defendant says that he has caused the above mentioned witnesses to be subpoenaed, and service has been had upon them; that said witnesses are not absent by the defendant's consent, connivance or procurement, and defendant believes that, if he is granted a continuance herein, he would be able to procure the said witnesses upon the trial of this cause, or take their depositions. (Signed) J. B. LASTER.

"J. B. Laster states that the facts set out in the foregoing motion are true and correct.

"Subscribed and worn to before me this the 31st day of October, 1921.

"JESSE L. RUSSELL, Clerk."

Over the objection and exception of appellant the motion was overruled, and the overruling of the motion is assigned by appellant as a ground for the reversal of the judgment. The motion was properly overruled, as appellant made no showing as to the whereabouts of the witnesses at the time the motion was filed. It was necessary to know and allege the whereabouts of the...