Smith v. State, 4675

• Decision Date: 14 January 1952
• Docket Number: No. 4675,4675
• Citation: 245 S.W.2d 226,219 Ark. 829
• Parties: SMITH v. STATE.
• Court: Arkansas Supreme Court

Page 226

245 S.W.2d 226

219 Ark. 829

SMITH v. STATE.

No. 4675.

Supreme Court of Arkansas.

Jan. 14, 1952.

Rehearing Denied Feb. 11, 1952.

Fred M. Pickens, Newport, George H. Steimel, Pocahontas, for appellant.

Ike Murry, Atty. Gen., Dowell Anders, Asst. Atty. Gen., for appellee.

WARD, Justice.

On or about August 1, 1949, appellant became an employee of Smith and Spencer Motors [at Pocahontas], a partnership composed of Elwood Smith (a nephew of appellant) and R. L. Spencer, which partnership was engaged in operating a garage and in buying and selling new and used cars. Appellant's duties were to keep records, handle cash, pay bills, etc., and he, as well as the two partners, was authorized to sign checks on the company. Sometime prior to March 9, 1951, when appellant left the employment of the company, his nephew, Elwood Smith, discovered what appeared to be irregularities in the books and Paul Johnston, a certified public accountant, was employed to make a cash audit of the partnership's books. This audit revealed a shortage of $7,714.57 and on June 15, 1951, information was filed charging appellant with the embezzlement of said amount and also charging him [under Ark.Stats. § 41-3927] with grand larceny by embezzlement on fourteen separate counts setting out as many separate offenses dating from February 14, 1950, to January 31, 1951.

Trial was had on July 19, 1951, and appellant was found guilty of grand larceny by embezzlement, as charged in the information, and was sentenced to three years in the penitentiary, hence this appeal.

For a reversal appellant first insists the lower court committed reversible error in refusing to grant a continuance. The transcript contains the motion for a continuance, the material part of which is as follows: 'The defendant is unable at this time to prepare his defense because all of the books, papers and evidence have been and are yet in the hands of the prosecuting witnesses, and it is impossible for this defendant to prepare his defense until said records have been made available for his use so that a complete audit can be made.' The motion contains no filing date but it was verified on July 14, 1951, which date we find to be a Saturday. We assume, in view of the court's language quoted below, it was first presented to the court on the following Monday. Since the court's statement, in overruling the motion, appears to be in accord with the facts, and since we agree with the conclusion and reasons therein mentioned it is herein copied as follows: 'This charge was filed on June 15th, 1951, and the defendant was arrested immediately thereafter. We had a pre-trial session of this court on date of July 2nd, 1951, at which time the whole docket was called, and steps taken in several cases, and, likewise, on July 7th, we had another pre-trial session, at which a similar proceeding was followed; not until the first day of the regular July Term of the court, on July 16th, was a motion for continuance filed, and, it was, at that time, overruled. On that day the defendant did file a motion for a subpoena duces tecum for the records and papers in the custody of the firm of Smith & Spencer Motors, and that motion for subpoena duces tecum was granted. The court, now, on this date of July 19th, the defendant having renewed this motion for a continuance, the Court thinks, under all the circumstances, the motion should be overruled.'

To the above ruling of the court the defendant further objected, in open court, that he thought, on July 2nd, this case would not be tried at that time, but he set out no facts [and there are none in the record] to warrant that impression. Moreover, in the same statement, he admitted that on July 7th the case was set for trial on the 19th. He further stated, however, that a civil action (a suit by Smith and Spencer Motors against him which involved the same accounting) was, on July 7th, set for trial on July 17th and that when he moved to transfer it to equity the plaintiffs took a nonsuit without prejudice. By all this, says appellant, he has been misled into a state of unpreparedness. We cannot agree that appellant's contention is warranted under the facts and circumstances set out above. The matter of granting or refusing a continuance lies within the sound discretion of the trial court. In Allison v. State, 74 Ark. 444, 86 S.W. 409, 412, Judge Riddick, speaking for the court, said: ' It has often been decided that whether a case should be continued or not is generally a matter within the sound discretion of the trial court. Its refusal to grant a continuance is never a ground for a new trial, unless it clearly appears to have been an abuse of such discretion, and manifestly operates as a denial of justice.' Numerous later decisions of this court have affirmed this rule. Also, as held in Jones v. State, 205 Ark. 806, 171 S.W.2d 298, there was a duty on appellant to show due diligence which the court had a right to consider in the proper exercise of its discretion.

The only other contention for a reversal is that there is a general...