Holub v. State

WOOD, J.,

(after stating the facts). I. This court, in cases too numerous to mention here, has held that continuances, in criminal as well as civil cases, are, as a general rule, within the sound discretion of the trial court, and a refusal to grant a continuance 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. In some of our cases much stronger language is used in announcing the law to the effect that in passing on motions for continuance this court will not disturb the ruling of the trial court unless it appears that such ruling, in denying the same, is arbitrary and capricious, thereby manifesting such an abuse of the court’s discretion as results in the denial of justice. Smedley v. State, 130 Ark. 149.

Perhaps the most cogent language used in this connection in any of' our cases is that by Mr. Justice Smith in Loftin et al. v. State, 41 Ark. 153, where he says: “It must be a flagrant instance of the arbitrary or capricious exercise of power by the circuit court, operating to the denial of justice, that will induce us to interfere.”

But see the language of Judge Lacey, in the very earliest case upon the subject, in Burrus v. Wise & Hyman, 2 Ark. 33, 42.

In some of the cases the rule is expressed in this way: “Continuances are largely in the discretion of the trial court, and their discretion will not be controlled except in cases of manifest abuse.” Puckett v. State, 71 Ark. 62, and cases there cited. While in other cases it is stated: “Motions for continuances in the cases are matters resting largely in the sound discretion of the trial court, and rarely afford grounds for reversal unless it is made to appear that such discretion has been abused.” Vannetta v. State, 82 Ark. 203.

Whether the milder or the stronger language employed by our oases to express the rulings in regard to controlling the discretion of the trial court in matters of continuances be applied to the facts of this record, it seems clear to a majority of us that there was no abuse of the court’s discretion in .overruling the appellant’s motion for a continuance. In the first place, the court might have very well concluded that inasmuch as the sheriff of Mississippi County had returned a non est, it would be confronted with the same conditions at the next term. Public officers will be presumed, until the contrary is shown, to have faithfully discharged their duty, and we can not assume that the sheriff, in making a non est return, did so without any attempt upon his part to obey the mandate of the subpoena in making an honest éffort to find the witness and serve the same upon him. In the second place, the court did not abuse its discretion in concluding that the testimony of Toms would have been cumulative. The appellant himself and two other witnesses testified to all the facts that appellant claimed in his motion for a continuance would have been shown by the testimony of Toms, towit: ' That the appellant purchased the sow in good faith from Toms. We have over and over again announced that it is not error to overrule a motion for a continuance on account of the absence of a witness whose testimony would be merely cumulative. Goddard v. State, 100 Ark. 149; Johnson v. State, 89 Ark. 46, and other cases cited in the Attorney’s General’s brief.

II. The action of the court in taking up the motion for a continuance after ten of the jury had been selected .and permitting evidence to be adduced for and against the motion was not in regular order, but we fail to discover that anything was said or done by the witnesses, the attorneys or the court that was calculated in the least to cause any sensible juror to forget the obligation of his oath to try the case according to the law and the evidence.

III. There was no abuse of the discretion of the court in permitting the jury to take with them to the jury room for examination in their deliberations the bill of sale. Appellant introduced tbis bill of sale bimself. By so doing be vouched for its authenticity. He was relying upon it as a most convincing piece of evidence, and such being the case be certainly could not be prejudiced, at least would have no right to complain, that the paper was subjected to the most crucial inspection that the jury might make of it to test its genuineness. See Harshaw v. State, 94 Ark. 343. If it could not stand the test it was not competent evidence at all.

IY. It does not seem to us that the facts present a very strong case for conviction, but after a careful consideration of the evidence, which speaks for itself, and is fully set forth in the statement of the case, we can not say that the verdict is wholly without substantial evidence to sustain it. It was the province of the jury to weigh it and give it such credit as they believed the witnesses were entitled to, and when considered from the viewpoint of the strongest inference of guilt that might be drawn from it, it can not be said that there is no substantial evidence to sustain the verdict.

Finding no error, therefore, in the record, the judgment must be affirmed.