Vanata v. State

• Decision Date: 25 March 1907
• Parties: VANATA v. STATE
• Court: Arkansas Supreme Court

101 S.W. 169

82 Ark. 203

VANATA v. STATE

Supreme Court of Arkansas

March 25, 1907

Appeal from Garland Circuit Court; W. H. Evans, Judge; affirmed.

Judgment affirmed.

C. V Teague, for appellant.

1. Upon the appellant's plea of insanity it became material to inquire into his past history. The action of the court in overruling appellant's motion for a continuance to enable him to procure the attendance of witnesses Anderson and Folk who, it was alleged, would testify to his insanity four or five years before the killing, and that he had taken the Keeley Cure three times, etc., was erroneous, and the refusal of the court to issue a rule on the sheriff of Sebastian County to return the subpoena issued to him for said witnesses was a denial of appellant's constitutional right to compulsory process for witnesses. 50 Ark. 161; 1 Bishop, Crim. Pro. 959 b; 5 So. 30; 60 Ark. 564; 58 Ark 551-5.

2. After the prosecuting attorney had admitted the truth of the facts set out in the motion for continuance, and defendant had announced ready for trial, and part of the jury had been selected, it was error to permit him to withdraw his admission.

William F. Kirby, Attorney General, and Daniel Taylor, Assistant, for appellee.

"Questions as to trial or continuance of causes rest so much in the sound discretion of the trial court that it must be a very capricious exercise of power or a very flagrant case of injustice that the appellate court will interpose to correct." 2 Ark. 33; 8 Ark. 119; 13 Ark. 720; 19 Ark. 92; 22 Ark. 164; 24 Ark. 599; 26 Ark. 323; 34 Ark. 720; 41 Ark. 153; 54 Ark. 243; 57 Ark. 165; 61 Ark. 88; 62 Ark. 286; Ib. 543; 71 Ark. 62.

Since in October this case was set for trial on December 12th, the issuance of a subpoena for appellant only six days prior to the latter date to have served upon and procure the attendance of witnesses who lived almost half way across the State from the place of trial was not such diligence on the part of appellant to justify a continuance. 58 Mo. 585; 30 S.W. 225; 31 S.W. 401; 59 Miss. 341. And the court could properly exercise its discretion more rigidly than on a first application for continuance. 57 Ark. 165, and cases cited. Unless a motion for continuance affirmatively alleges that the witness is not absent by the consent, connivance or procurement of the party asking the postponement, it is fatally defective. Kirby's Dig. § 6173.

2. There was no error in refusing to grant a rule on the sheriff. No sufficient time had elapsed to justify such a procedure.

OPINION

MCCULLOCH, J.

Appellant, Steve Vanata, was convicted of murder in the second degree and appeals to this court. The only error assigned is that the court improperly overruled his motion for continuance of the case. He was indicted at the April term, 1906, and on appellant's motion the case was continued until the next term and set for trial on October 1, 1906; and on that day it was again postponed until December 12, when the trial was had. His counsel presented a motion for continuance on account of the absence of two witnesses who were alleged to be in Ft. Smith, Arkansas. It is also alleged in the motion that the witnesses had been present on a former day, and that a subpoena had been issued for them to the sheriff of Sebastian County, but that the same had not been returned.

Questions arising upon motions for continuance of cases are matters...