Davidson v. State , 109 Ark. 450 ( 1913 )

Kirby, J.,

(after statihg the facts). It is first contended that the court erred in denying the motion for a continuance. The court found that on May 1 the case was set for trial on the 22d, thereafter, and that shortly thereafter the defendant caused a subpoena to be issued directed to the sheriff of Prairie County, for the absent witness, not giving the sheriff any information.as to Ms whereabouts, and had not made any effort to have the subpoena returned. Besides, the testimony of this witness was largely cumulative of that introduced. Half a dozen or more people, all of whom saw the difficulty, being examined as witnesses. Applications for continuances are addressed to the sound discretion of the court, or trial judge, and we do not find that there was an abuse of judicial discretion in the denial by the court of this motion. Jackson v. State, 94 Ark. 169; Miller v. State, Ib. 538; McIlroy v. State, 100 Ark. 310.

Neither did the court err in overruling the motion for a change of venue. The court examined the witnesses, making the supporting affidavits, and their testimony disclosed that they did not have such definite and sufficient information as to the state of mind of the inhabitants of the county toward the defendant to make it necessary for the granting of the motion in order to give the defendant the benefit of a fair trial. Williams v. State, 100 Ark. 218; McIlroy v. State, Ib. 307; Wolfe v. State, 107 Ark. 29.

It is next contended that the court erred in ruling upon the qualifications of two jurors, Meerifield and Nolan. Merrifield stated that he had an opinion about the case, formed from rumor, but that he could forego that and give the defendant a fair and impartial trial on the evidence produced, and the court correctly held him qualified. Decker v. State, 85 Ark. 64.

The juror, Nolan, stated that he had long been acquainted with the appellant and knew his family intimately and could not view the case with the same fairness and impartiality, as if appellant was not known to him; that he would be biased in his favor, and would be influenced by his acquaintance with the family to some extent and the court thereupon excused him and committed no error in doing so. Decker v. State, supra, 85 Ark. 64.

Appellant also complains of the court’s action in allowing a witness to state that he was in the habit of carrying a pistol, but if there was any error committed in permitting the introduction of this testimony we are of the opinion that it was harmless and could not have prejudiced appellant’s case. It tended in no wise to show that he had armed himself for the encounter, but rather the contrary, and he did in fact have the pistol and fired the shot which killed deceased, a club-footed man, not physically strong, and under such circumstances as fully warranted his conviction for the grade of the offense of which the jury found him guilty.

Finding no prejudicial error in the record, the judgment is affirmed.