Price v. State

• Decision Date: 07 January 1893
• Citation: 20 S.W. 1091,57 Ark. 165
• Parties: PRICE v. STATE
• Court: Arkansas Supreme Court

20 S.W. 1091

57 Ark. 165

PRICE v. STATE

Supreme Court of Arkansas

January 7, 1893

Appeal from Lincoln Circuit Court, Varner District, JOHN M. ELLIOTT Judge.

Judgment affirmed.

H. King White, for appellant.

W. E Atkinson, Attorney General, for appellee.

OPINION

HUGHES, J.

The court has examined and considered the several instructions given and refused in the case; and while it does not appear that the first instruction was called for by the evidence, we are of the opinion that it could not have misled the jury, when considered in connection with the other instructions given. There was reason to believe from the evidence that the deceased had committed a public offense in the presence of the appellant, who was an officer. It does not appear, however, that the appellant was prejudiced by the instruction.

There was no error in the court's refusal to give the fourth instruction asked for by the appellant, the law having been sufficiently given in other instructions; and this one being too broad.

The only remaining question in the case is, did the circuit court commit a reversible error in denying the application of the appellant for a continuance of the cause on account of the absence of the witness, Chester Morrow?

Section 2189 of Mansfield's Digest provides that "the provisions of law in civil actions, in regard to postponements of the trial of actions, shall apply to the postponement of prosecutions on behalf of defendant."

Section 34 of the civil code, being section 5108 of Mansfield's Digest, provides that "a motion to postpone a trial on account of the absence of evidence shall, if required by the opposite party, be made only upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it; and, if it is for an absent witness, the affidavit must show what facts the affiant believes the witness will prove, and not merely the effect of such facts in evidence, and that the affiant himself believes them to be true."

The application in this case fails to state that the affiant himself believes the facts to be true, which he states in his application that he could prove by the absent witness. We do not suppose that for this omission alone the motion for continuance was denied, nor do we decide that it would have been, in this case, sufficient reason for denying the motion.

The venue in this case had been changed from Jefferson to Lincoln county, on the application of the appellant. After the venue had been changed to Lincoln county, the trial of the cause was continued, upon the application of the appellant, for one term of the court. It appears that after his arrest the defendant was admitted to bond and released from the custody of the sheriff on the 28th of October, 1891. The venue was changed November 12, 1891, to Lincoln circuit court, which began February 22, 1892. On the 22d of February 1892, the Lincoln circuit court continued the cause on account of the sickness of the defendant, and set it for trial on the 17th day of August, 1892. On the latter date the defendant filed his motion for continuance, which was denied. So it appears that the defendant, after he was released on bail, had about eight months and twenty days in which to prepare for his trial, and to take steps to insure the attendance of his witnesses. It is true, he had had the absent witness recognized to appear and testify, and had had a subpoena issued for him shortly before the term of the court, at which he was tried. Yet we cannot say, in view of the large discretion of ...