Perez v. State
| Decision Date | 23 September 1963 |
| Docket Number | No. 5083,5083 |
| Citation | 236 Ark. 921,370 S.W.2d 613 |
| Parties | Julian PEREZ, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Sam L. Anderson, Hot Springs, for appellant.
Bruce Bennett, Atty. Gen., by Richard B. Adkisson and John P. Gill, Asst. Attys. Gen., Little Rock, for appellee.
Appellant Julian Perez was one of three men arrested for robbery of a Safeway Grocery Store. On February 11, 1963, he was charged with robbery by information and trial was set in Garland Circuit Court for May 9, 1963. On the morning of May 9th, an article appeared in the local newspaper relating the facts of the robbery and stating that the other two men charged in the same robbery had pleaded guilty and been sentenced to six years in the penitentiary. In chambers before trial, appellant moved the court for a continuance because of the article and introduced the article into evidence. The motion for a continuance was denied.
At the conclusion of the trial that day, the jury found appellant guilty and sentenced him to six years in the penitentiary.
Appellant has appealed contending that the trial court erred in refusing to grant a continuance on the motion submitted on the morning of trial.
The applicable Arkansas Criminal Procedure statute on continuances is Ark.Stat.Ann. § 43-1705 (1947), which states:
'Postponement.--When an indictment is called for trial, or at any time previous thereto, the court, upon sufficient cause shown by either party, may direct the trial to be postponed to another day in the same term, or to another term.'
The following section (§ 43-1706) provides that the civil procedure statutes (§§ 27-1402-27-1404) on postponement of trial in civil actions will apply to the postponement of prosecutions on behalf of defendants. These civil procedure statutes relate to postponement after amendment of pleadings, continuance for absence of evidence or witnesses, and payment of costs. Review of our case law reveals that other grounds frequently used are physical or mental condition of defendant, objections to the jury, want of time for preparation, absence of counsel, and surprise at trial.
In Moore v. State, 229 Ark. 335, 315 S.W.2d 907, the trial court gave permission for television filming in the corridors during appellant's trial. A radio newscast the night before announced the planned televising, and appellant's attorney moved for a continuance to determine whether the radio announcement adversely affected his client. The motion was denied, and in upholding that ruling this court stated simply,
There is no doubt that the granting or refusing of a motion for continuance is addressed to the sound discretion of the trial court, Martin v. State, 194 Ark. 711, 109 S.W.2d 676; Brockelhurst v. State, 195 Ark. 67, 111 S.W.2d 527; Gentry v. State, 201 Ark. 729, 147 S.W.2d 1; and will not be reversed unless the trial court abuses its discretion. Burriss v. Wise, 2 Ark. 33; Smith v. State, 200 Ark. 1152, 143 S.W.2d 190; Turner v. State, 224 Ark. 505, 275 S.W.2d 24. In Shushan v. United States, 5 Cir., 117 F.2d 110, 133 A.L.R. 1040, cert. den. 313 U.S. 574, 61 S.Ct. 1085, 85 L.Ed. 1531 (CA 5th La., 1941), the Court of Appeals held that the trial court had not abused its discretion in denying a continuance because of allegedly prejudicial newspaper publicity, pointing out that the trial judge was a resident of the vicinity and personally cognizant of the true situation. In an overwhelming number of cases appellate courts have refused to reverse the trial court for refusing continuances sought on the basis of excitement or prejudice. In Finnegan v. United States, 204 F.2d 105 (8th Cir., 1953), the Court of Appeals went so far as to say that newspaper publicity tending to excite public prejudice against a defendant is not usually considered a sufficient reason for...
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Cableton v. State
...and reversal is not authorized unless the trial court abused its discretion. Jackson v. State, 54 Ark. 243, 15 S.W. 607; Perez v. State, 236 Ark. 921, 370 S.W.2d 613. Appellant says the continuance should have been granted because his attorney had what the latter considered a more important......
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Wolf's v. State
...252 Ark. 870, 481 S.W.2d 320 (1972). Furthermore, the burden is upon the appellant to demonstrate abuse of discretion. Perez v. State, 236 Ark. 921, 370 S.W.2d 613 (1963). Therefore, in the instant case, appellant must demonstrate such prejudice resulting from the denial of his motion for c......
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Freeman v. State
...that tribunal will not be reversed absent a clear abuse of discretion. Nowlin v. State, 252 Ark. 870, 481 S.W.2d 320 and Perez v. State, 236 Ark. 921, 370 S.W.2d 613. In Perez, it was pointed out that the burden rests on an appellant to demonstrate an abuse of discretion by the trial court ......