Scott v. Cleveland , 110 Ark. 9 ( 1913 )

Smith, J.,

(after stating the facts). It has been many times said that, ‘ ‘ Continuances in criminal as well as in civil cases are, as a general rule, within the sound discretion of the trial court; and a refusal to grant a continuance in a criminal case is never a ground for a new trial unless it is made to appear that such discretion has been abused to the prejudice of the defendant.” Lane v. State, 67 Ark. 293. The rule, of course, is the same in civil cases.

And in the Lane case, supra, Judge Battle for the court defined the duty of the trial court upon the hearing of a motion for a continuance, and there said:

“The defendant insists that the court had no right to hear evidence controverting the truth of his motion. The contention is partly correct. The statement of facts which are expected to be proved by an absent witness can not be contradicted, by testimony or counter affidavits for tbe purpose of defeating a continuance; for tbe statute which regulates the postponement of trials in criminal prosecutions, so far as it is applicable, provides that no continuance shall be granted in civil cases on account of an absent witness, if the adverse party will admit that the absent witness, if present, would testify to the statements contained in the application for a continuance— thereby prohibiting the defeat of the application, so far as it relates to the testimony of the absent witness, by counter affidavits, or in any other manner, except by admitting that the witness, if present, would testify as the appellant believes he will. But, as to facts showing diligence and the like, the case is wholly different, and the same reasons do not apply. Counter affidavits or other competent evidence may be admitted and heard for the purpose of showing the want of diligence in procuring the testimony of an absent witness, or the want of good faith in making the application for a continuance, or the improbability that the proposed testimony can be obtained. State v. Rainsbarger, 74 Iowa, 196; State v. Bailey, 94 Mo. 311; Cushenberry v. McMurray, 27 Kan. 328; Lascelles v. State, 90 Ga. 375; State v. Bevel (Iowa), 56 N. W. Rep. 546; Anonymous, 3 Day, 308; McGee v. State, 31 Tex. Crim. Rep. 71.”

The rule appears therefore to be that the party resisting the continuance may not defeat the continuance, by offering proof showing that the testimony of the absent witness would not be true if given. But it is permissible to offer affidavits, or other competent evidence, to show a want of diligence in procuring the testimony of the absent witness, or the want of good faith in making the application for a continuance, or the improbability that the proposed testimony can be obtained; and if the court finds any of these three things to exist against the motion it has the discretion to refuse the continuance.

Here the court evidently found that diligence had been exercised in the attempt to secure the attendance of Fleetwood, but considered his affidavit on the questions of good faith and of the probability of securing the evidence set out in the motion. The court struck out certain statements to which Fleetwood would not have been permitted to testify had he been present, and also undertook to conform the motion for a continuance to the affidavit, and we would not hold this to be an abuse of discretion had this only been done. But the court did more, it added to the motion for continuance the statement contained in the affidavit, “But did tell me in January, 1911, that he had a right to sell the timber for defendants, Scotts. ’ ’

The pivotal question of fact in the ease was whether appellant had an agency for the sale of timber, when he first showed it to Day prior to July, 1911, or whether in showing the timber appellee was merely attempting to aid his father-in-law, James, to make a sale during James’s agency therefor. Appellee insisted that he had the agency for the sale of the timber, when it was shown Day, and he was permitted to bolster up his own statement to that effect by proving his own self-serving statement made to Fleetwood in January, 1911, that he was in fact then the agent for appellants.

It is a general rule, of broad application, that the declarations of a party, in his own favor, are not admissible in his behalf. The court’s action offends against that rule. To get the benefit of certain relevant, material evidence of an absent witness, appellant was compelled to submit to the introduction of this incompetent evidence, and as it does not appear that no prejudice resulted therefrom, we are constrained to reverse the judgment of the court below, and remand the cause for a new trial. And it is so ordered.