# Christian v. State

> Court of Appeals of Arkansas · September 15, 1982 · 6 Ark. App. 138

URL: https://www.frixlaw.com/law-library/cases/6550260

## Case

- **Full name:** Charles CHRISTIAN v. STATE of Arkansas
- **Court:** Court of Appeals of Arkansas
- **Decided:** September 15, 1982
- **Citations:** 6 Ark. App. 138; 639 S.W.2d 78; 1982 Ark. App. LEXIS 862
- **Precedential status:** Published
- **Opinion:** Dissent by Cooper
- **Judges:** Cooper, Glaze
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

James R. Cooper, Judge, dissenting. I respectfully dissent from that portion of the majority opinion which holds that the trial court did not abuse its discretion in denying a continuance. I am fully aware of the heavy burden that the appellant bears in trying to persuade an appellate court to reverse a trial court’s denial of a continuance. However, a review of what transpired at the time of the motion, rather than what was ultimately elicited from the witness stand, makes it clear that the trial court should have granted the continuance.
Before the selection of the jury, the defense counsel informed the trial court that appellant’s codefendant was not present for trial, and that the codefendant’s testimony would be necessary to properly defend the appellant. The defense counsel said:
Judge, I would like to speak up at this time. The prosecutor has mentioned something. There is an interdependency of testimony in this case. I expect that Mr. James Guy would have offered an alibi for my client, Charles Christian, and his lack of being able to testify may be prejudicial to my client. I anticipated that James Guy would have taken all the liability for the charges in this case. [T. 21, emphasis added.]
The defense counsel renewed his motion for a continuance before the trial began. The defense counsel said:
Your Honor, I would like to renew my motion for a continuance on the same grounds, the failure of Mr. Guy to appear and offer an alibi, testimony for my client Charles Christian. Further, I would like to move for a continuance in regard to the absence of Mr. James Guy. I understand from the bonding company that he has called at 8:46 this morning to the bonding company but not myself, and that he is having motor problems in Morrilton, Arkansas and that he has promised the bondsperson that he will be here as soon as he can get transportation.
THE COURT: Overruled. [T. 25]
The majority’s opinion is critical of the defense counsel’s use of the term “alibi.” The opinion defines alibi as “a defense which is commonly understood to place a defendant at another place at the time of the commission of the alleged offense.” However, another acceptable definition of alibi is “to offer an excuse”. Webster’s Third New International Dictionary, 1976. It is clear from the context in which the word “alibi” was used, that the defense counsel intended it to mean “to offer an excuse”.
The majority’s opinion goes on to say that if the defense counsel intended to show that the appellant did not possess the necessary culpable mental state to be guilty of the crime charged, then the defense counsel failed to proffer any testimony or evidence. The Uniform Rules of Evidence, Rule 103 (a) (2), Ark. Stat. Ann. § 28-1001 (Repl. 1979), states:
In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which the questions were asked. [Emphasis added.]
The substance of the evidence was obvious, at least to me. Defense counsel was requesting a continuance because the codefendant’s testimony would show that the appellant had no knowledge of the crime.
The presence of the codefendant was very material to the appellant’s defense. The testimony of the codefendant was to be offered not on a collateral issue, but on the central issue of whether the appellant was guilty of the crime charged. The testimony of the codefendant would have tended to prove that the appellant had no knowledge of the crime charged. As was said in Blackwell v. State, 42 Ark. 273 (1883):
What influence it might have had upon the jury, if admitted, we do not know. We can not undertake to say that they would have convicted appellant, if the excluded evidence had been admitted. It is deemed safer to award a new trial.
The Arkansas Rules of Criminal Procedure, Rule 27.3, Ark. Stat. Ann. Vol. 4A (Supp. 1981), provides:
The court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.
In determining whether to grant the continuance, the trial court must consider numerous factors, some of which are:
(1) Whether other continuances have been granted;
(2) the length of the requested delay;
(3) whether the requested delay is for legitimate reasons;
(4) whether the motion was timely filed;
(5) whether the defendant contributed to the circumstances giving rise to the requested delay;
(6) whether the denial of the delay would result in prejudice to the defendant’s case of a material or substantive nature;
(7) whether the delay would be consistent with the fair, efficient, and effective administration of justice;
(8) the likelihood of procuring attendance of the witness in event of postponement; and
(9) the consent of opposing counsel.
No one of these factors is a prerequisite to the granting of a continuance, but they are factors to be considered by the trial court in deciding whether to grant the continuance. The question of whether a continuance should have been granted is within the discretion of the trial court, and the burden is on the appellant to show that there has been an abuse of discretion. Thorne v. State, 269 Ark. 556 , 601 S.W.2d 886 (1980); Golden v. State, 265 Ark. 99 , 576 S.W.2d 955 (1979); Kelley v. State, 261 Ark. 31 , 545 S.W.2d 919 (1977); Thacker v. State, 253 Ark. 864 , 489 S.W.2d 500 (1973).
Under the Arkansas Rules of Criminal Procedure, Rule 27.3, Ark. Stat. Ann. Vol. 4A (Supp. 1981), the requirement of an affidavit is no longer an essential prerequisite for the granting of a continuance, as it was under Ark. Stat. Ann. § 43-1706 (Repl. 1977) and Ark. Stat. Ann. § 27-1403 (Repl. 1979). As long as the requirement of good cause is shown, it makes no difference what method is used. I agree with Chief Justice Fogleman’s concurring opinion in French v. State, 271 Ark. 445 , 609 S.W.2d 42 (1980), in which he said:
Section 27-1403 was made applicable to criminal proceedings by § 190 of the Criminal Code of 1869 [Ark. Stat. Ann. § 43-1706 (Repl. 1977)]. Section 27-1403 was a part of the Civil Code of 1869. We have adopted comprehensive new Rules of Criminal Procedure and of Civil Procedure. Although 27-1403 is not mentioned in the supersession order entered when the Rules of Civil Procedure were adopted, those rules include Rule 40 (b) which merely provides that the court may, upon motion and for good cause shown, continue any case previously set for trial. The Reporter’s notes state that the motion for continuance does not have to be in writing. There is no provision in the current Arkansas Rules of Criminal Procedure similar to Ark. Stat. Ann. § 43-1706.1 do not see how § 27-1403, at least as applied to criminal cases, can be said to have survived.
Further, even if for some reason Ark. Stat. Ann. § 43-1706 (Repl. 1977) and Ark. Stat. Ann. § 27-1403 (Repl. 1979) should still be in existence and controlling, no affidavit was required in the case at bar, since the State did not require defense counsel to support his motion for a continuance by affidavit. See, Venable v. State, 177 Ark. 91 , 5 S.W.2d 716 (1928).
The majority has decided that the probable testimony of the absent codefendant, when viewed in the light of appellant’s statement and the other evidence against him, would not have helped him. I thought that the weighing of evidence and the inferences to be drawn from it, were the province of the jury, not the appellate courts. I would reverse and remand for a new trial.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6550260. Public record. Not legal advice.