Taylor v. State

• Court: Arkansas Supreme Court
• Writing for the Court: MCHANEY, J.
• Citation: Taylor v. State, 101 S.W.2d 956, 193 Ark. 691 (Ark. 1937)
• Decision Date: 22 February 1937
• Docket Number: Crim. 4017
• Parties: TAYLOR v. STATE

101 S.W.2d 956

193 Ark. 691

TAYLOR v. STATE

Crim. 4017

Supreme Court of Arkansas

February 22, 1937

Appeal from Fulton Circuit Court; John L. Bledsoe, Judge; affirmed.

Judgment affirmed.

N. P Ford, for appellant.

Jack Holt, Attorney General, and John P. Streepey, Assistant, for appellee.

OPINION

MCHANEY, J.

Appellant was indicted and tried for murder in the first degree for the killing of one Willie Wilson by shooting him with a shotgun. He was convicted of murder in the second degree and sentenced to fourteen years in the penitentiary.

Three grounds are assigned and argued by appellant for a reversal of the judgment and sentence against him: 1. Error of the court in refusing his motion for a continuance; 2, error in admitting an alleged dying declaration of deceased; and 3 that the verdict and judgment are contrary to, and not supported by, the evidence.

1. As to the first alleged error, that the court erred in denying him a continuance on account of the absence of a witness, it does not appear from the motion therefor that appellant exercised any diligence in securing the presence of the witness, nor did the motion name any witness who was absent and whose presence was desired, other than that he was a physician in Jonesboro, "who attended deceased in his lifetime and knew the severity or lack of severity of the wounds" inflicted on deceased, "and that due diligence has been used to obtain said evidence." The last mentioned statement as to diligence is a conclusion of the pleader without alleged facts to support it. In fact, diligence is refuted by the facts alleged. The name of the absent witness is not set out nor is any reason assigned therefor in the motion. It is not alleged that his presence could be had at a later day of the same term or at a subsequent term. It is not alleged that the absent physician attended deceased in his last illness, nor that what he would testify to, if present, could not be proved by any other witness. Under these circumstances the trial court did not err in overruling the motion. It is the settled rule in this court that the question of a continuance is one resting in the sound discretion of the court and that its action will not be disturbed on appeal except where there is a clear abuse of discretion which amounts to a denial of justice. Adams v. State, 176 Ark. 916, 5 S.W.2d 946; Smith v. State, 192 Ark. 967, 96 S.W.2d 1.

2. As to the dying declaration made by deceased, it is contended that it was inadmissible because not made under a sense of impending death. George Wilder, a justice of the peace testified for the state that he was at the house of deceased on Saturday evening before he died on Tuesday evening and that deceased made a statement to him about the shooting. On objection being made, the state's attorney questioned the witness as follows: Q. Did he make that statement to you under a sense of impending death? A. Yes, sir. Q. What did he tell you? A. I asked him if he wanted to make a statement and he said he wasn't able, and I said, Willie, you may die or you may live, and he said, "I cannot live." Thereupon, he made the statement which was reduced to writing and which was damaging to appellant, and was introduced over objections. We think the statement was properly admitted to be given such consideration by the jury as it was entitled to under the court's instructions. The court instructed the jury on this matter as follows: "Gentlemen, with reference to the statement given by the deceased, which was introduced in evidence, which was given on Saturday before the death of the deceased on Tuesday, it is permissible for you to consider this statement which has been introduced in evidence as evidence, provided you believe that at the time it was given the deceased realized the approach of...