Westbrooks v. State

• Decision Date: 03 June 1929
• Docket Number: 20
• Citation: 17 S.W.2d 868,179 Ark. 714
• Parties: WESTBROOKS v. STATE
• Court: Arkansas Supreme Court

17 S.W.2d 868

179 Ark. 714

WESTBROOKS v. STATE

No. 20

Supreme Court of Arkansas

June 3, 1929

Appeal from Sevier Circuit Court; B. E. Isbell, Judge; reversed.

Case reversed, and remanded.

McConnell & Jackson, for appellant.

Hal L. Norwood, Attorney General, and Robert F Smith, Assistant, for appellee.

OPINION

BUTLER, J.

On the 7th day of February, 1929, an indictment was returned against the appellant, charging him with the crime of incest. The case was called for trial on the 13th day of February following. On that day the appellant presented his motion for continuance, with proper averments as to diligence, etc., and for cause alleged that two witnesses who had been duly served with subpoenas in the case, were absent without his procurement, connivance, or consent; that they were sick, and unable to appear. He set up the expected testimony of these witnesses in his motion. It was shown by the certificates of physicians and by the testimony of witnesses that these witnesses were sick with influenza. As to one, Mrs. J. E. Cannon, the doctor certified that she would not be able to go out of the house for a period of five or six days, and as to the other, Mrs. Willa Ransom, no indication of the time at which she might leave her home was indicated in the certificate of the doctor or the testimony of witnesses.

The court, on presentation of the motion, made an order passing the case until the 15th, and made the further order that the defendant might take the depositions of the witnesses named in his motion for continuance. On the 15th the motion for continuance was overruled, and defendant saved his exceptions, and the cause was tried. The jury found the defendant guilty, and assessed his punishment at three years' imprisonment in the State Penitentiary.

There are only three assignments of error insisted upon in this court as grounds for reversal, i. e., the refusal of the court to grant continuance, the admission of incompetent testimony, and the refusal of the court to give appellant's prayer for instruction No. 1, and the giving of instruction No. 2 by the court on its own motion.

The only direct evidence in this case on the part of the prosecution was that of the prosecuting witness, the daughter of the defendant, who testified specifically and positively to a number of acts of misconduct on the part of the defendant, and, as the evidence shows that she was not sixteen years of age at the time several of the acts were committed, there was no corroboration necessary to warrant a verdict. Indeed, the corroboration, while we think it would have been sufficient had she been more than sixteen years of age, was wholly circumstantial in its nature, and not very convincing. We think that the jury must have reached its verdict upon the testimony of the child.

It is evident from the record that the defendant was given little time for preparation for trial. This might have been due, in part, to the extreme indignation aroused against the defendant because of the nature of the crime and the story repeated by his alleged victim. All of this made it the more important that the defendant be given every reasonable means to present whatever defense he might have, and the permission to take the depositions of the absent witnesses could not preclude defendant from his constitutional rights to have the personal attendance of the absent witnesses.

It is not often that the discretion of the trial judge in refusing to grant a motion for continuance will be disturbed, but in this case the evidence of the two women, witnesses for the defendant, who were unable to attend on account of illness is material. As set up in the motion, Mrs. Cannon would have testified, if present, that, within a short time, some thirty or forty days before the convening of the court, the...