Herring v. StateHerring v. State
- Reporters:
- , ,
- Before:
- McCulloch
This is аn appeal from a judgment of conviction for the crime of selling intoxicating liquоr. The indictment was returned on March 4, 1925, and appellant was put on trial October 21, 1925. When the case was called for trial, appellant filed a motion for a cоntinuance on the ground that he was seriously ill, and had been in that condition for two or three days past, and that he was unable to attend the trial. There was an affidavit of а physician accompanying the petition certifying to the fact that apрellant was side, and would be unable to attend court for several days. The court аppointed two physicians to examine appellant, and they reported that he was able, to go to court. Appellant, through his counsel, then contendеd that, since the examination by the physician on the day before, his condition had grоwn worse, and that he was unable to attend at that time. The court overruled the motiоn, and this ruling is assigned as error.
It is unnecessary for us to determine whether the court, under the circumstances, abused its discretion in refusing to postpone the trial, for, even if there was an abuse of discretion, no prejudice resulted. Appellant was in attendance at the trial, testified at length in his own behalf, and there is no indication that he was рhysically or. mentally incapacitated from assisting his counsel in his defense, or in giving his testimоny clearly to the jury. He testified at considerable length during the trial, and there is no indication that he was unable to give a coherent statement of the facts about which he undertook to testify. There was no prejudice therefore in the ruling of the court, even if it constituted an abuse of discretion.
It is next contended that the court erred in denying appellant the right of having a drawn jury from the regular panel, and in denying him a sufficiеnt number of challenges.
When the case was finally called for trial, appellant announced ready and proceeded with the impaneling of the jury without asking* for а drawn .jury until a portion of the jury had been selected and accepted. The question was raised that there had been no formal arraignment, and, appellant thеn refusing to plead, the court entered on the docket a waiver of arraignmеnt and a plea of not guilty. It was then that appellant’s counsel asked for a drawn jury. It was too late then to make the request, for appellant had, by proceeding with the selection of the jury without a formal arraignment, waived both the arraignment and the right to have a drawn jury. Bettis v. State, 164 Ark. 17. Appellant had exercised a portion оf his peremptory challenges up ‘to the time this incident occurred in the progress of the trial, and his counsel claimed the right to exercise the full statutory number of chаllenges after that time. After he had exhausted his twenty challenges, he claimed still anоther, which the court denied, and this ruling is assigned as error. The contention is that appellant was entitled to the full twenty challenges after the court had noted his waiver of аrraignment. This is not true, for the reason that the participation in the selection of the jury constituted a waiver, and all of the challenges exercised up to that timе were chargeable against the accused. He did not have the right to disregard thе number of challenges up to that time and exercise twenty more thereafter. The effect of his waiver of arraignment was the same as if he had been formally arrаigned and had pleaded to the indictment at the beginning of the trial, hence he was chargeable with all the challenges he had exercised from the beginning.
On the cross-еxamination of appellant, the prosecuting attorney brought out the fact that appellant had served a term in the penitentiary, and on redirect examination appellant’s counsel asked permission for the witness to state the circumstances of his conviction. This request was denied, and the ruling is assigned as error. There was no attempt to bring into the record what the answer of the witness would have been if thе court had permitted him to make answer to the inquiry, therefore there is nothing to show that any prejudice resulted from the court’s ruling.
The giving of instruction No. 5 is assigned as error, but this instruction is identical with one which was approved by this court in the case of Humphreys v. State, 168 Ark. 163.
Judgment affirmed.