Price v. State

• Decision Date: 17 January 1903
• Citation: 71 S.W. 948
• Parties: PRICE v. STATE.
• Court: Arkansas Supreme Court

71 S.W. 948

PRICE v. STATE.

Supreme Court of Arkansas.

January 17, 1903.

Appeal from circuit court, Sebastian county; Styles T. Rowe, Judge.

Elmer Price was convicted of assault with intent to kill, disturbing the peace, and carrying a pistol, and appeals. Reversed as to the conviction for assault with intent to kill.

S. F. Lawrence and Evans & Brown, for appellant. Geo. W. Murphy, Atty. Gen., for the State.

BUNN, C. J.

This is an indictment for assault to kill and murder. Upon the trial it was suggested that two other indictments against the defendant were pending at the same time for misdemeanors growing out of the same circumstances as that of the felony, and it was agreed, in order to save time and costs, that the jury in the felony case might try the two misdemeanor cases also, — one for disturbing the peace, and the other for carrying a pistol. The jury rendered a verdict of one year in the penitentiary for the assault with intent, and for $5 for disturbing the peace, and for $50 for carrying a pistol, and three separate judgments were entered accordingly, as well as three separate records made; and the defendant appealed, his motion for new trial, containing 14 grounds, being overruled; the objections being for the most part common to all the cases, and not confined to any one, the grounds for the controversy, however, having reference to the felony cases only.

There was first a demurrer to the indictment for assault with intent to kill and murder, but this appears to have been on the ground that the indictment had not been properly filed, or not filed at all. This, if true, was not the subject of demurrer, and might have been corrected by order nunc pro tunc or other motion. The demurrer was properly overruled.

The next objection in order was the refusal of the court to grant the defendant a continuance on account of the absence of witness Mattie Rambo, who had been duly and in due time summoned to appear and testify, first for the state, and, secondly, for the defendant, but who did not attend on account of extreme sickness. Witness resided within eight or ten miles of the place of trial, and within the local jurisdiction of the court. It appears that defendant asked a continuance on account of the absence of this witness, stating the materiality of her testimony, and complying with other requests in his application; but the court overruled his motion. He then asked an attachment for the witness, which the court refused to grant, but ordered him to take the deposition of the witness, the prosecuting attorney agreeing to waive notice, etc., in order to enable the parties to take the deposition to be read on the trial on the following day. To this the defendant objected, claiming the right to be confronted by the witness, and for compulsory process for attendance. His objections were overruled. All exceptions were saved. The testimony of the witness, as set forth in defendant's application for continuance, was very material to his defense. He appears to have used due diligence. The sickness of the witness was shown to be of a character not commonly fatal or of long duration. The defendant could not be compelled to take her deposition by order of the court, and, on the contrary, had the right to be confronted by her on the trial as a witness for the state, and to have compulsory process for obtaining witness' testimony in his favor. Const. art. 2, § 10. The fact that the witness was sick and unable to attend was not a circumstance to be made to work to the prejudice of the defendant. The state...