Pool v. State

180 S.W. 339, 121 Ark. 17, 1915 Ark. LEXIS 460

• Court: Supreme Court of Arkansas
• Decided: November 15, 1915
• Status: Published

Opinion

Wood, J.

(after stating the facts). Appellant contends that the court erred in overruling his motion for a continuance.

(1) Appellant was indicted in February, arrested in April, and was tried at a special term which convened on the 19th of May. The regular term convened on the fourth Monday in August. The court did not err in overruling appellant’s motion for'a continuance. The motion itself is not set out in .the abstract, and appellant does not set up in his abstract and brief any facts tending to show that the court abused its discretion in overruling his motion. Appellant does not state sufficient facts to show that he used due diligenge to secure the presence of the witnesses mentioned in his motion at the trial. Moreover the facts which he expected to establish by the testimony of these witnesses was but in the nature of cumulative evidence showing threats and efforts of Avery to kill appellant. No prejudice resulted in not having these witnesses to testify. Owens v. State, 120 Ark. 562; Peters v. State, 103 Ark. 119; Godard v. State, 100 Ark. 149.

Appellant contends that the court was without jurisdiction. It appears that an order was first made calling a special term of the Columbia circuit court to be held on the 19th day of May, 1915. The order named several parties who were in jail, and lamong them the appellant, who were to be tried at the special term. Th,e order did not state that the special term did not interfere with any other court to be held by the same judge; nor did it state that the special term was not to be held -within twenty days of any regular term of the Columbia circuit court ; nor did it direct the clerk to enter the order on.the record.

A few days iafter the first order was made the judge issued another order calling a special term to be held on the 19th of May, 1915. This order was identical with the first except that it did not name the defendant (appellant) as one of the parties confined in jail to be tried at the special term.

(2) The order of the circuit judge calling a special term must comply strictly with the law creating such term in order to give the court jurisdiction. Sam Bell v. State, 120 Ark. 530; Reece v. State, 118 Ark. 310, 176 S. W. 165; Beard v. State, 79 Ark. 293.

(3-4) The order under review is a sufficient compliance with the statute. The first and second orders should be treated as (but one order, for the last was evidently intended to supplement or amend the first order, and to specify things that had been omitted in the first order. The two orders considered as one contain all the requirements set forth in the above cases. It was not necessary that the order should specifically set forth that the special term would not interfere with iany regular term of court to be held by the circuit judge, nor that it was not to be convened within twenty days of the regular term of the circuit court for the county in which the special term was to be held. As was said in Crain v. State, 45 Ark. 450-452, “The day upon which the special term wtas held is disclosed by the record, and we take judicial notice.of the fact that it does not interfere with a regular term, and that it was not within twenty days of the time for holding the regular term in the county. ’ ’

The assignments of error as to the ruling of the court in refusing a certain instruction asked by appellant, and in its ruling upon the admissibility of certain testimony cannot be considered here for the reason that appellant did not file his bill of exceptions within the time granted by the trial court. Calloway v. State, 120 Ark. 204; Riley v. State, 120 Ark. 450.

The judgment is correct, and is therefore affirmed.