Opinion
Opinion delivered November 11, 1929.
1. CONTINUANCE — DISCRETION OF COURT. — The exercise of the trial court's discretion in refusing a continuance in a criminal case will not be ground for reversal unless it clearly appears that the discretion was abused, and that such refusal manifestly operated as a denial of justice. 2. CONTINUANCE — WHEN PROPERLY DENIED. — It was not error to overrule a motion for continuance for absent witnesses in a criminal case where it was not shown, except in an unsupported motion, that the absent witnesses could have been subpoenaed for the next term of court, and where no evidence was offered as to why they were gone or when they would return. 3. HOMICIDE — EVIDENCE OF PRIOR DIFFICULTY. — Refusal to permit one of the defendants, in a prosecution for assault with intent to kill, to detail a difficulty between the prosecuting witness and a third person, which occurred some days before the alleged shooting, held not error, such testimony being irrelevant. 4. CRIMINAL LAW — INSTRUCTIONS CURED BY OTHER INSTRUCTIONS. — Instructions, in a prosecution for assault with intent to kill, that, if one of the defendants stood by and consented to assault by the other defendant, or if he advised and encouraged the assault, he would be guilty, held not erroneous as omitting the plea of self-defense, where other instructions fully covered the subject, so that the jury could not have been misled. 5. CRIMINAL LAW — INSTRUCTIONS — SPECIFIC OBJECTIONS. — If the defendants in a prosecution for assault with intent to kill thought the instructions given assumed the guilt of one of the defendants, they should have objected specifically on that ground. 6. ASSAULT AND BATTERY — ACCESSORY — EVIDENCE. — A verdict finding one defendant in a prosecution for assault with intent to kill guilty as accessory to an aggravated assault was not without substantial evidence to support it, where the jury could have found that such defendant reported that he had had trouble with the prosecuting witness, and that both defendants got in a car to hunt for and shoot him.
Appeal from Crawford Circuit Court; J. O. Kincannon, Judge; affirmed.
Partain Agee, for appellants.
Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
Appellants, who are brothers, were separately indicted, charged with assault with intent to kill one Marion King by shooting him with a pistol. The indictment against Lee Edwards contained a second count, charging him with accessory before the fact to assault with intent to kill the same person. On a joint trial by consent, Calvin was convicted of aggravated assault and sentenced to pay a fine of $500 and one day in jail. Lee was convicted of "accessory to aggravated assault," and sentenced to pay a fine of $100 and one day in jail.
For a reversal appellants urge the following errors:
1. That the court erred in overruling their motion for a continuance on account of the absence of two witnesses, Harrison Sanders and Troy Boyd, who, only a day or two before the return of the indictments, had left their homes at Piney, Arkansas, and gone to Oklahoma. The indictments were returned on July 2. Sanders left June 30 and Boyd on July 2. The subpoenas were issued on July 5, and an effort to serve them on the 9th disclosed their absence. The motion is in statutory form, but we do not think the court committed reversible error in refusing the continuance. The general rule, as announced by this court in many cases, is that continuances in both civil and criminal cases are addressed to the sound discretion of the trial court, and that this court will not reverse a case on such ground unless it clearly appears that the court has abused its discretion, and that such refusal manifestly operates as a denial of justice. Allison v. State, 74 Ark. 444, 86 S.W. 409; Wood v. State, 159 Ark. 671, 252 S.W. 897; Eddy v. State, 165 Ark. 289, 264 S.W. 832. There has been no denial of justice in this case. It is not shown, except in the unsupported motion of appellants, that these witnesses could have been served for the next term of court, as no evidence was offered or received as to why they were gone or when they would return. We do not review the evidence it is alleged Sanders would give, or that of Boyd, as it would serve no useful purpose. The court did not err in overruling the motion.
2. It is next said the court erred in refusing to permit Lee Edwards to detail a difficulty between King and Harrison Sanders which occurred some days before Galvin shot King. This testimony was irrelevant to the matter before the court, and was properly excluded.
3. Instructions 7 and 8, of which appellants complain, are as follows:
"Gentlemen of the jury, if you find from the testimony in this case that the defendant, Lee Edwards, stood by, aided and consented to his brother, Galvin Edwards, to assault the prosecuting witness, Marion King, with a deadly weapon, with intent to kill, he would be guilty the same as if he had committed the crime himself.
"If you find that he advised and encouraged Galvin Edwards to make an assault upon the prosecuting witness, Marion King, with the intent to take his life, he would be guilty as if he had committed it himself."
It is said they assume the guilt of Galvin Edwards, and omit the right to act in necessary self-defense. No specific objection was made to these instructions on these or any other grounds. As to the omission of the self-defense plea, the next instruction fully covers the subject, and we do not think the jury could have been mislead on either proposition. If appellants had thought the instructions assumed the guilt of Galvin, they should have specifically objected on this ground, and the court might have so worded it to eliminate the objection.
4. It is finally insisted there should have been a directed verdict for Lee Edwards. We cannot agree with this contention. Taking the evidence in its most favorable light to the State, we cannot say there is no substantial evidence to support the verdict. It shows that appellants were driving toward town in their car, and met King in a wagon; that Galvin told King to get out, that he, King, had been mistreating his brother Lee; that Galvin got out of the car, and shot him twice; that Lee said: "Don't shoot the son of a bitch any more. You have done killed him, I guess." Lee, who is small and deformed, had a row with King that morning, and the jury was justified in finding that he had reported the trouble to Galvin, and that the two of them got in the car to hunt him down and shoot him. We cannot say therefore that the verdict as to Lee was without any substantial evidence to support it.
No error appearing, the judgments are affirmed.