Thacker v. State
| Decision Date | 29 January 1973 |
| Docket Number | No. 5798,5798 |
| Parties | Tommy Edward THACKER, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Douglas W. Parker, Fort Smith, for appellant.
Ray Thornton, Atty. Gen. by Julie W. McDonald, Asst. Atty. Gen., Little Rock, for appellee.
Thacker appeals from a conviction of the crime of burglary and his sentencing under the habitual criminal act. He asserts that the trial court erred in denying him a continuance. His motion for continuance was based upon the absence from the trial of Leon Garner, Ruthe Doe and Jo Ann Roe. In the subpoena issued to the sheriff of Garland County for these witnesses, Garner was described as 'operator of Cliff's Drive Inn,' and the other two were stated to be persons who worked at that establishment. This subpoena for attendance at the trial on April 18, 1972, was issued on April 10. The return, dated April 13 and signed by a deputy sheriff, stated that, after a diligent search, he failed to find the witnesses named in Garland County. Appellant asserted that these witnesses would establish an alibi defense, i.e., that he was in Hot Springs at the time of the burglary with which he was charged.
The circuit judge, before conducting a hearing on the oral motion, observed that notice had been given on March 31, 1972, that the case would be tried on April 18. The appellant declined to testify in support of his motion, after his request for a hearing in camera was granted. No evidence was offered in support of appellant's motion. Thacker's principal argument here is that, since the subpoena was in the hands of the Garland County sheriff, who had placed a detainer against him on a charge pending in Garland County, for only one day, a diligent search for the missing witnesses could not possibly have been made.
Our statutes provide that, if the opposite party requires it, a motion to postpone a trial on account of the absence of a witness shall be made only upon affidavit, stating the facts to be proved by the witness and the affiant's belief in their truth, showing the materiality of the anticipated testimony, due diligence on the part of the party asking postponement, the lack of connivance at, consent to, or procurement of, the absence by the movant. Ark.Stat.Ann. §§ 27--1403, 43--1706 (Repl. 1964). These statutes also permit the opposing party to controvert these statements by evidence.
We have consistently held that the matter of granting or denying a continuance on account of the absence of a witness in a criminal case is within the sound judicial discretion of the trial court and that its action will be disturbed on appeal only in case of abuse. Brown v. State, 252 Ark. 846, 481 S.W.2d 366; Nash v. State, 248 Ark. 323, 451 S.W.2d 869; Striplin v. State, 100 Ark. 132, 139 S.W. 1128; Walker v. State, 100 Ark. 180, 139 S.W. 1139. Among the matters to be considered by the court in exercising this discretion are the diligence of the movant, the probable effect of the testimony at the trial and the likelihood of procuring the attendance of the witness in the event of a postponement. Striplin v. State, supra. The purpose of the requirement of an affidavit is to permit the trial judge to evaluate these and other essential considerations and to permit the adverse party to controvert the movant's statements in regard thereto. The failure to file such an affidavit is a significant factor in appellate review of the trial court's denial of such a motion. Leach v. State, 229 Ark. 802, 318 S.W.2d 617. Here, there was neither affidavit nor testimony to show what the witnesses would testify, appellant's belief in the truth of their testimony, what appellant had done to assure timely issuance and service of the subpoena, or to show that their absence was not the result of an act or omission on his part, or that there was any probability that these witnesses would ever be available. Under these circumstances we cannot say that there was any abuse of the circuit judge's discretion. See Cathey v. State, 194 Ark. 1074, 110 S.W.2d 17; Davis v. State, 155 Ark. 245, 244 S.W. 750.
Appellant then asserts that the circuit judge erred in failing to direct a verdict of acquittal. His argument is that the testimony of Shirley Kimbrough, an alleged accomplice, was not corroborated by other evidence tending to show his connection with the crime as required by Ark.Stat.Ann. § 43--2116 (Repl. 1964). The test of sufficiency is whether, if the testimony of the accomplice should be eliminated, the remaining evidence would establish the commission of the offense and the connection of the accused with it. Petron v. State, 252 Ark. 945, 481 S.W.2d 722; Froman v. State, 232 Ark. 697, 339 S.W.2d 601. Corroborating evidence which only raises a suspicion of guilt is not enough. Underwood v. State, 205 Ark. 864, 171 S.W.2d 304. But it need not be sufficient, for conviction,...
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Finch v. State, CR77-149
...in the absence of a clear showing of abuse of discretion in the matter and in the absence of a showing of prejudice. See Thacker v. State, 253 Ark. 864, 489 S.W.2d 500; Nash v. State, 248 Ark. 323, 451 S.W.2d 869. On appeal, the state relies only upon appellant's failure to demonstrate prej......
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Klimas v. State
...on the charge of larceny and that of burglary, even if it be found in an automobile in which the accused is a passenger. Thacker v. State, 253 Ark. 864, 489 S.W.2d 500; Lee v. State, 200 Ark. 964, 141 S.W.2d 842. A conviction of two defendants of burglary and grand larceny has been sustaine......
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Westbrook v. State
...placed him on unusually heavy dosages of antipsychotic drugs. We do not feel this case is controlled by the facts in Thacker v. State, 253 Ark. 864, 489 S.W.2d 500 (1973), where we held the trial court did not abuse its discretion in refusing to grant a continuance because of the absence of......
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Kelley v. State
...discretion of the trial judge as to amount to a denial of justice. Figeroa v. State, 244 Ark. 457, 425 S.W.2d 516; Thacker v. State, 253 Ark. 864, 489 S.W.2d 500. The burden rests upon an appellant to show that there has been such an abuse. Freeman v. State, 258 Ark. 496, 527 S.W.2d There a......