Thacker v. StateThacker v. State
- Reporters:
- , ,
- Before:
- Fogleman
Thаcker appeals from a conviction of the crime of burglary and his sentencing under the habitual criminal act. He asserts that the trial сourt erred in denying him a continuance. His motion for continuance was based upon the absence from the trial of Leon Garner, Ruthe Dоe and Jo Ann Roe. In the subpoena issued to the sheriff of Garland County for these witnesses, Garner was described as “operator of Cliff’s Drive Inn,” and the other two were stated to be persons who worked at that establishment. This subpoena for attendance at the trial on April 18, 1972, was issued on April 10. The return, dated April 13 and signed by a deputy sheriff, stated that, after a diligent search, he failed to find the witnesses named in Garland County. Appellant asserted that these witnesses would establish an alibi defense, i.e., that he was in Hot Springs at the time of the burglary with which he was charged.
The cirсuit judge, before conducting a hearing on the oral motion, observed that notice had been given on March 31, 1972, that the case would be triеd on April 18. The appellant declined to testify in support of his motion, after his request for a hearing in camera was granted. No evidenсe was offered in support of appellant’s motion. Thacker’s principal argument here is that, since the subpoena was in the hands of the Garland County sheriff, who had placed a detainer against him on a charge pending in Garland County, for only one day, a diligent searсh for the missing witnesses could not possibly nave been made.
Our statutes provide that, if the opposite party requires it, a motion to postpone a trial on account of the absence of a witness snail be made only upon affidavit, stating the facts to be proved by the witness and the affiant’s belief in their truth, showing the materiality of the anticipated testimony, due diligence on the part of the party asking postpоnement, the lack of connivance at, consent to, or procurement of, the absence by the movant.
We have consistently held that the matter of granting or denying a continuance on account of the absence of a witness in a criminal case is within the sound judicial discretion of the trial court and that its action will be disturbed on appeal only in case of abuse. Brown v. State, 252 Ark. 846, 481 S.W. 2d 366; Nash v. State, 248 Ark. 323, 451 S.W. 2d 869; Striplin v. State, 100 Ark. 132, 139 S. W. 1128; Walker v. State, 100 Ark. 180, 139 S.W. 1139. Among the matters to be considered by the court in exercising this discretion are the diligence of the movant, the probable effect of the testimony at the trial and the likelihood of procuring the attendance of the witness in the event of a postponement. Striplin v. State, supra. The purpose of the requirement of an affidavit is to permit the trial judge to evaluate the adverse party to controvert the movant’s statements in regard thereto. The failurе to file such an affidavit is a significant factor in appellate review of the trial court’s denial of such a motion. Leach v. State, 229 Ark. 802, 318 S.W. 2d 617. Here, there was neither affidavit nor testimony to show what the witnesses would testify, appellant’s belief in the truth of their testimony, what appellant had done to assure timely issuance and service of the subpoena, or to show that their absence was not the result of an act or omission on his part, or that there was any probability that these witnesses would ever be available. Under these circumstances we cannоt say that there was any abuse of the circuit judge’s discretion. See Cathev v. State. 194 Ark. 1074, 110 S.W. 2d 17; Davis v. State, 155 Ark. 245, 244 S.W. 750.
Appellant then asserts that the circuit judge erred in failing tо direct a verdict of acquittal. His argument is that the testimony of Shirley Kimbrough, an alleged accomplice, was not corroborated by оther evidence tending to show his connection with the crime as required by
The corroborating evidence here is clearly sufficient. It is admitted that the Custom Woods Products Building in Fort Smith had been burglarized on the night of February 10, 1972. Carl Leding, the owner of the business, testified that a number of blank checks bearing the name of his business were taken from the building on that occasion and gave the numbers thаt these checks bore. Some of these checks were found in a plastic bag under some clothing in an automobile owned by a Miss Shelby whiсh had been occupied by Thacker and his codefendant, Ronald Dunn, a former employee of Leding. Thacker’s fingerprints were found on these checks. The innkeeper at Holiday Inn South in Fort Smith testified that Thacker registered at the inn under the name “Eddie T. Madden” at 2:35 p.m. on February 10, 1972.
Evidence that an accused was found in possession of property stolen as a result of a burglary, or that it was found in an automobile in whiсh he is a passenger, is sufficient to support a conviction of the burglary. Johnson v. State, 251 Ark. 291, 473 S.W. 2d 155; Lee v. State, 200 Ark. 1189, 141 S.W. 2d 845; Kelley v. State, 191 Ark. 674, 87 S.W. 2d 400. Certainly evidence of possession of the stоlen checks by Thacker tended to connect him with the burglary charged and constituted sufficient corroboration of the testimony of the accomplice. Jones v. State, 205 Ark. 806, 171 S.W. 2d 298.
Appellant also contends that error was committed by permitting the introduction of evidence under the habituál criminal act. The constitutionality of this act has been sustained by this court several times. Brown v. State, 252 Ark. 846 (1972), 481 S.W. 2d 366; Ridgeway v. State, 251 Ark. 157, 472 S.W. 2d 108; Poe v. State, 251 Ark. 35, 470 S.W. 2d 818. The second count of the information charged that the punishment lay within the purview of
The judgment is affirmed.