185 S.W.2d 274 | Ark. | 1945
Appellant, charged by information with the crime of murder in the first degree, alleged to have been committed by shooting his wife, Bertha Brown, to death, was convicted by a jury of voluntary manslaughter. He seeks to reverse the judgment of the circuit court sentencing him, in accordance with the verdict, to imprisonment in the penitentiary for a term of two years.
For grounds of reversal appellant argues: I. That the lower court erred in overruling his motion for continuance; II. That the lower court should have sustained appellant's oral motion praying that the jury be discharged and a mistrial declared because of the fact that, though appellant was a negro, no negroes had been summoned "for jury service in connection with the trial of this case . . ." or "for service on the regular panel"; and III. That the verdict is contrary to the evidence.
The matter of granting or refusing a continuance is largely within the discretion of the trial court, and it *182 is only in cases where it appears that the lower court has abused its discretion that this court will reverse because a continuance was not granted.
The lower court granted one continuance to enable appellant to obtain the testimony of Gaylord, and it was not shown, when the motion for continuance was renewed, that Gaylord's attendance could ever be obtained. The trial court did not abuse its discretion in denying appellant's request for a second postponement of the case. Rucker v. State,
No witness, other than Lula McDaniels and appellant, testified as to the circumstances surrounding the killing. Appellant's version was that he had decided to leave town and went to see his wife in an effort to get her to turn over to him a pistol which he wanted to pawn; that when he entered the room he attempted to take the pistol from his wife and in the ensuing struggle the pistol was discharged; that he had no intention to hurt his wife in any way; that after the shooting he went to the nearby home of a white man, whom he told that he "thought he had shot Bertha," and to whom he surrendered the pistol.
The testimony of Lula McDaniels, if true, was sufficient to authorize conviction of even a higher degree of homicide than that of which appellant was found guilty. The trial court told the jury that if the defendant, "by accident or misadventure and not intentionally, while acting with due caution and circumspection and not in a reckless or careless manner, shot and killed Bertha Brown, then he would not be guilty of an unlawful homicide and you should acquit him." It was the sole province of the jury to determine which of the two versions of the tragedy they would accept. They saw fit to believe Lula McDaniel's story rather than that of appellant; and the jury's finding, supported as it is by substantial testimony, is binding on us. Pleasant v. State,
No error being shown in the record, the judgment of the lower court is affirmed.