Starnes v. State

• Decision Date: 16 April 1917
• Docket Number: 315
• Citation: 194 S.W. 506,128 Ark. 302
• Parties: STARNES v. STATE
• Court: Arkansas Supreme Court

194 S.W. 506

128 Ark. 302

STARNES v. STATE

No. 315

Supreme Court of Arkansas

April 16, 1917

Appeal from Clay Circuit Court, Western District; R. H. Dudley Judge; affirmed.

Judgment affirmed.

C. T Bloodworth, for appellant.

1. A continuance should have been granted. 71 Ark. 180.

2. The court erred in its instructions. 122 Ark. 259.

3. The prosecuting attorney's remarks were prejudicial.

John D Arbuckle, Attorney General, and T. W. Campbell, Assistant, for appellee.

1. A motion for continuance is addressed to the sound discretion of the court and there was no abuse. 61 Ark. 88; 71 Id. 62; 82 Id. 203; 101 Id. 405; 94 Id. 538. No diligence was shown. 94 Ark. 169, 538; 19 Id. 590; 71 Id. 62.

2. The objections to instructions are not set up in the motion for new trial. They are waived. 73 Ark. 455; 80 Id. 345; 75 Id. 534; 78 Id. 374; 103 Id. 307; 101 Id. 120; 95 Id. 363.

3. The instruction asked had already been given. 103 Ark. 352; 101 Id. 569; 92 Id. 481.

4. Any improper remarks by the prosecuting attorney were cured by the instructions of the court. 110 Ark. 538.

OPINION

SMITH, J.

This appeal is prosecuted to reverse a judgment sentencing appellant to the penitentiary for the period of one year, for the crime of grand larceny, alleged to have been committed by stealing certain hogs, the property of one Abe Brown; and we discuss the assignments of error in the order in which they are presented in appellant's brief.

It is first said that error was committed in refusing to grant a continuance for the purpose of securing the attendance of one Frank Pickard, who, according to the recitals of the motion for a continuance, would have given material evidence in support of appellant's plea of not guilty. It appears, however, that appellant was indicted January 21, 1916, and that the case was not called for trial until January 16, 1917, and there is no intimation that appellant did not have practically all this time to prepare for his defense, and the subpoena for this witness was issued in this case only two days before the trial. A subpoena, however, had been issued in the case of Barley Starnes, who was also indicted for the larceny of the same hogs, but this subpoena was only placed in the hands of the sheriff of the county five or six days before the trial, and, from recitals in the motion for a continuance, it appears that appellant knew the witness had departed for another county, but it was alleged that he was then only temporarily absent, and would return in about four days, as the affiant was informed and believed. We can not say, under these circumstances, that the court abused its discretion in holding that appellant had not made a sufficient showing of diligence to entitle him to a continuance. Baldwin v. State, 119 Ark. 518, 178 S.W. 409.

Appellant complains of the action of the court in giving an instruction numbered 7. But he has failed to incorporate in his motion for a new trial an objection to this instruction; and we can not now consider this assignment of error. Mabry v. State, 80 Ark. 345, 97 S.W. 285; Burris v. State, 73 Ark. 453, 84 S.W. 723; Ince v. State, 77 Ark. 418, 88 S.W. 818.

It was shown at the trial that witnesses Tyler and Catt had helped appellant drive certain hogs, which Brown claimed to own, to appellant's house, it being the theory of the State that the appellant got the hogs to his house in this manner. Appellant requested the following instruction:

"If, after a full consideration of all the evidence, you have a reasonable doubt that the hogs which the witnesses, Quinn Tyler and Oliver Catt, say they helped the defendant drive from the field of Abe Brown, were the property of Abe Brown, then you should find the defendant not guilty."

The refusal to give this instruction is assigned as error. We think, however, that this was not prejudicial, because the State is not required to prove each circumstance tending to show guilt beyond a reasonable doubt. The evidence is legally sufficient for that purpose, if, upon a consideration of it as a whole, it is sufficient to convince, and does convince, the jury, beyond a reasonable doubt, of the guilt of the accused. Lasater v. State, 77 Ark. 468, 94 S.W. 59.

An instruction was given which very plainly told the jury to acquit the accused, if, upon a consideration of all the evidence in the case, a reasonable doubt was entertained as to his guilt, and no error, therefore, was committed in the refusal to give the instruction requested by appellant.

Appellant did not testify at his trial, and, in the concluding argument, the prosecuting attorney said:

"The defendant has not denied a single allegation of the indictment."

Whereupon objection was immediately made to this argument, and the court was requested to rebuke counsel in the presence of the jury for having made the remark quoted. This was not done, but the court gave an additional instruction to the following effect:

"No. 12. The statute of this State confers upon one accused of crime the right to testify in his own behalf, if he so desires; but if he does not see fit to take advantage of the right given to him, you are not to infer his guilt on account of that. You will determine the question of his guilt or innocence from all the facts and circumstances in proof before you. After having determined the facts, you will then apply the instructions applicable to the facts as you may find them, and render your verdict accordingly."

The court had previously given an instruction numbered 2, which reads as follows:

"No 2. To this indictment the...