556 PADGETT V. STATE. [171 • PADGETT V. STATE. Opinion delivered June 28, 1926. 1. CRIMINAL LAW—PETITION FOR CHANGE OF VENUE—SUPPORTING AFFIDAms.—Affiflavits in support of a petition for a change of venue upon the ground that the defendant could not obtain a fair trial in the county held insufficient under Crawford & MOses' Dig., § 3088, where they did not show that affiants were qualified or that they were not related to the defendant. CRIMINAL LAW—CHANGE OF vENUE—AFFIDAVITs.—Affidavits in support of a petition for change of venue on the ground that I . . accused could not obtain a fair trial in the county held not to show such acquaintance with the, minds of the inhabitants of the county as to qualify affiants as credible persons within CraWfoid & s Moses' Dig., § 3.088. . CRIMINAL LAW—CONTINUANCE—ABSENT WITNESSES.—In a prose- : cution for selling intoxicating liquors; denial of a continuance on the ground of the absence of witnesses who would have . testified merely as to the abience, of drunkenness or disorderly conduct on , defendant's premises, was not error, since such testimony would have been irrelevant.. . CRIMINAL LAW—REFUSAL OF INSTRUCTIONS ALREADY GIVEN.— • ' Denial of requested instructions covered by others given is snot error.: Appeal from White Circuit Court ; E. D. Robertson, judge; affirmed. J. N. Rachels and J. R. Linder, for appellant.
ARK.] PADGETT V. STATE. 557 W. , Applegate; Attorney General, * and Daecleit Moose, Assistant, for appellee. • Woon, J..' ThiS appeal-is from a jridginent" Of .the White Cireuit 'Court sentending, the appellant ta imprisonl. Merit 'in the State PenitentiarY fOr r a periad, Of One:Year Oh conViCtiOn for the crime of 'selling intoilcating ,.„ The, appellant filed his petitionf for . change; of venue:in dile , form,. supported by affidavits in: the , following: form: We,. the, uridersigned;• resident citizens of White , County; Arkansas,: on oath state , that ..we,, and each of us;;; are familiar with the, 'statements, contained in the..foregoing petition, , And that we; And each. of, us, believe the same to-be true.. ( Signed) p . J. 4,, JaCkson,.,H. Subscribed :and sworn ..to before; me this the, 25:th day. ..oy ;Januanr,,:192.. E. Turnidge, F .,.! • . • •••• , \Two of the affiants to the PetitiOn ' testified- to the effect-that 'they *did not helieve the aPpellant COuld cbtairi d"fair -and 'finpartial trial' in White • CanntY fioni the . expressions they had heard from the people aroUnd Beebe.:. •!-One: of the affiants . had : lived in the •oUntY and at . Beebe. mate than, 25 years: . 'Beebe iWasithe !Market for a great Many people: in . the Western partOf the county; and 'he, had come; in- !contact Vitlr. 13eofile ;froth .all-oier -the county. From what:he had: .heard . of the eipressions sevetal:. people .ffom -different ' i)arts . df. the Connty didn 2 t . believe the appellant'temild obtain a fair And impirtial. trial 'in the, 'county.: • This' witness Concluded his : testimony ' by . ,saying.. that I the: people . he had ., heard Oxpte§s -opinions..abautz it -Were: areund. 'Beebe; -his: home". 'Of 'course, I don ? t, pretend to- say All over the courity;" said the Witne8s. . other. affiantlestified that -he based his opinion upan what .he had heard Around' Beebe: That was the only place- he had been.- He stated that 'he- had not talked to any people, in Antiech, Albion i; Bald .Knob, Big Creek and .13,angbutn township's. ! Beebe . is abont all I know about," said the witness. WitneSs waS in 'the dray business, and that Was not 'Fitch a • busiteSs as
558 PADGETT V. STATE. 1.171 caused him to come in touch with a great many people around over the community. - The court overruled the petition for change of venue. This ruling was correct for two.reasons. First, the statute requires that the petition for change of venue be supported by the affidavits of two credible persons who are qualified electors and actual residents of the county and not related tb the defendant in any way. Section 3088, C.'& M. Di6st. The atipporting affidavit does not • shoW that the 'affianth were qualified electors of White County arid that the'y were not related in any way to the defendant. Second, the • testimony of tbe two , affiants does not . shoW that they were credible persons within the nieaning of the statute. Their testimony does • not show such knowledge of the "condition of the•minds of the inhabitants of White County as would justify' the affiants in making oath that appellant could not ga a fair and impartial trial in the county. Dewein v. State, • 120 Ark. 302, 179. S.W. 346; Speer v. State, 130 Ark. 457, • 198 S. W. 133 Williams v. State, 162 Ark.. 285, 258 S. W. 386. . 2. The bill of exceptions shows the following: - • "Mr. Linder : We want to file a motion for n continuance. - Three of the witnesses•called failed to answer, 'two of which L understand have certificates here from physicians that they are unable to attend conrt.• . Court :
What- is the Motion'? Mr. Linder : • The- motion for a continuance sets out the fl fact that these witneses 'are absent not by the connivance or consent of ourselves; that they have been summoned' here; and .what we , expect to
prove by them ;-they live in the community of the defendant down there— Court : You need-not go into details ; sit down, all of you. Mr. Linder :. 'Shall I file the motion, your Hórior I Court : Sit doWn. Mr. Reporter, take this : This case was regularly set for trial this morning and was- called for trial. The witnesses were called and the State announced ready for trial, and the defendant called his witnesses and announced to the court that he couldn't go to trial because two of them were out of the
ARK.] PADGETT V. STATE. 559 county. and :not here. The court thereupon passed the case until the afternoon; before the afternoon, during the : recess of the court, ,counsel for the defendant announced to the court that his witnesses had arrived the, county, that he lad, a-telephone message from them from Kensett, ancl that he would, be yeady for trial on theArrival of those witnesses from lensett, that, he wOuld take his chances on any other witnesses. The court is now informed that those witnesses are here, so, any further motion , to pOstpone this case is not adMiSsible and will be denied. Mr. Rachels : The conversation ,I had with the court was that I thought with these people here, we•could go to trial, also , stating to the court that Mr. Linder was , in ,the case with me, and I would ascertain whether or not we could go to trial and let the court know, and Mr. Linder informed me, when I talked to him about it, that it was necessary to have these certain, witnesses here, and he prepared the motion, and ,it ` ftled, and we would like to present it to the court for further postponement of this case: That is as full as I remember the conversation that I undertook to, tell, the court.: At arty rate, !I don't want to be , placed in the .position :Of .binding the defendant, Sidney Padgett, .if e has a . further legal ( reason why he should :not m y to trial. Inasmuch as I : am the attorney who talked to the court,; I am asking that Mr. Linder be permitted io present to the court defendant's motion, and let the court pass upon the legality of the motion. Court : "Examine the jury, gentlemen." "Save our exceptions." 1 : One of the-grounds- of error• alleged in • appellant's motion for a new trial is that "the court erred in refusing to permit counsel for defendant to present motion for continuance in the ; usual and proper manner, and: in refusing to bear the contents of the same,•thus depriving the defendant of a legal defense as set out in said motion_ for 'continuance." The motion for continuance, which the appellant offered to present,: states in substance that three witneSses, naming them; itpresent, would testify that they are close neighbors of the. defendant, and that
560 PADGETT V. STATE. [171 they have never seen or been annoyed by disorderly or drunken conduct. of persons- on the premises of the defendant; that the defendant is basing this defense on the ground that the State 'will attempt to show by a number of witnesses that there has been disorderly conduct in and near the home of the defendant. The ruling of the trial court was tantamount to a refuSal tO alle-W the appellant, under the facts stated by the court, to 'file and present any further motion for a continuance: This rUling is net prejudicial to the appellant, nnlesS he offered to file a motion in which he set forth testimony 'of absent witnesSes . that would be 'material to his defense and - that he had 'used due diligence to obtain the .same'; that he'believed the testiMony to be 'trne, and that there was just . ground to believe that the evidence COuld be had at the next term of the court. - Now, the Motion fOr cell; tinuance- which appellant 'offered to file "in the cOurt below set forth that three witnesses; naming them, if present would•testify that they *ere close neighbor4 of the -defendant, and that they had never 'seen or been arinoYed by disorderlY or drtnken conduct of liersons on the premises Of - the defendant. "The indictrnent against :ailpellant . -charged him With unlawfully and feloniously elling and being' interested in the ; sale Of intokicating liquors. The appellant . was tried and Convicted of this Offense. The testimony was suffiCient to show that 'he was guilty of the crithe charged. Such being- the nature of the offense, the testinieny of the alleged absent witnesses, as •g et forth in the motion -for continuance,.was not material to the charge, and, if the witnesses had been present and offered to testify as set forth in the-motion, it. would have been the duty of the trial -.court to exclude their testimony. Such testimony was wholly irrelevant to . the issue as to whether or not the appellant had sold and was interested in the sale -of intoxicating liquors. MoreoVer, the alleged . testi-molly. of these absent witnesses was but negative in character, because no- testimony is set forth tending to prove-that there had been any disorderlY or drunken conduct
ARK.] 561 of persons on the premises of the defendant, Sidney Pad-gett: ' Such- was not the charge- in the indictment; • and an atteMpt upon the part of the appellant to rebut such charge would have been wholly irrelevant. The court tteiefore did not err in overrnling the motion fdr continuance. , 3. Counsel for appellant insist that_the . .court :erred in refusing. to grant its prayers for instructions numbered from one to thirteen inclusive. Counsel point.out no. specific Objection to • the ruling of the court in refus; irig theSej iritructiOns. We have examined them . ," however, arid find that such of these prayers as were correct were fully . covered by instructions which the court gave. The oral and' written in'structions as : given br the court fully covered the law of the case in conformitY with the zules of law governing such cases often announced by this court, and we deem it unnecessary to set out and comment upon them. We have also examined the specific objection made by the appellant to the refusal of the court to , give his, instructions numbered 11 and.13 in the original form.and to ,the modification of these instructions and the giving of the same:as modified. There was no .error in these rulings of the court. The record presents no reversible error, , and the judgment must therefore be affirmed. It is so ordered.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.