Walker v. State

• Decision Date: 02 October 1911
• Citation: 139 S.W. 1139
• Parties: WALKER v. STATE.
• Court: Arkansas Supreme Court

139 S.W. 1139

WALKER v. STATE.

Supreme Court of Arkansas.

October 2, 1911.

Appeal from Circuit Court, Mississippi County; Frank Smith, Judge.

F. J. Walker was convicted of first degree murder, and he appeals. Affirmed.

A. F. Barham and Virgil Greene, for appellant. Hal L. Norwood, Atty. Gen., and Wm. H. Rector, Asst. Atty. Gen., for the State.

McCULLOCH, C. J.

Defendant, F. J. Walker, was convicted of murder in the first degree for killing one Sam Smith, on May 4, 1911, at Dell, Mississippi county, Ark. The indictment against him for this offense was returned by the grand jury on May 15th, and he was placed on trial May 25th, after the overruling of his motion for a continuance, in order to procure the attendance of an absent witness, Wilson Murray by name. It was alleged in the motion that Murray was present when the homicide occurred, and his testimony would, if given on the witness stand, as set out in the motion, tend to excuse it, or at least to reduce it to a lower degree than murder. Murray is, as appears from the testimony introduced before the court at the hearing of the motion for continuance, defendant's relative. They were intimate companions, and worked together in a lumber camp, and Murray was present when the killing occurred, and accompanied defendant to the jail at Blytheville when he was arrested, but he had not been seen in that locality by any one since then. A subpœna was issued for the witness, but the sheriff and his deputies were unable to find him at the place indicated in defendant's motion, or elsewhere. No one could be found who knew anything concerning the whereabouts of the witness. Under those circumstances, especially when the intimate relationship of the witness and the defendant be considered, and his sudden and unexplained disappearance, we cannot say that the court abused the discretion always reposed in trial courts in the matter of granting or refusing continuances.

Error of the court is assigned in permitting the state to introduce testimony, not properly in rebuttal, after defendant had rested his case. The statute (Kirby's Digest, § 2378) authorizes the presentation of testimony in chief after the defendant has closed his case, when that appears to be necessary "in furtherance of justice," and of that the trial court must be the judge. It rests within the sound discretion of trial courts to permit testimony to be adduced out of time, and the exercise of that discretion will not be disturbed by this...