# Webb v. State

> Supreme Court of Arkansas · November 20, 1972 · 253 Ark. 448

URL: https://www.frixlaw.com/law-library/cases/7818989

## Case

- **Full name:** David WEBB v. STATE of Arkansas
- **Court:** Supreme Court of Arkansas
- **Decided:** November 20, 1972
- **Citations:** 253 Ark. 448; 486 S.W.2d 684; 1972 Ark. LEXIS 1492
- **Precedential status:** Published
- **Opinion:** Concurrence by Fogleman
- **Judges:** Byrd, Fogleman, Harris, Smith, That
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7818989

## Opinion text

John A. Fogleman, Justice, Concurring. I concur in the result because a timely objection was not made. As I understand the record, no objection was registered until the court, parties, attorneys and witnesses had reached the residence of the witness. I agree that a criminal should not be permitted to take advantage of his own wrong. The real issue in this case was whether defendant was the criminal. The state’s attorney stated that the witness had identified the defendant in at least one judicial proceeding as the perpetrator of the crime, that the witness had been struck one time and, at the time of trial, was totally incapacitated and bedridden and seemed to think that his condition resulted from what had happened. Defendant’s attorney only expressed reluctance about going to the home of the witness at that time and made no offer to controvert any statement made by the prosecuting attorney.
We have from time immemorial said that one charged with a crime is presumed to be innocent — that this presumption attends him throughout the trial as evidence in his favor until overcome by evidence sufficient to convince the trier of facts of his guilt beyond a reasonable doubt. Kagen v. State, 232 Ark. 189 , 334 S.W. 2d 865 ; Cranford v. State, 156 Ark. 39 , 245 S.W. 189 ; Carlton v. State, 109 Ark. 516 , 161 S.W. 145 .
If the statements of the prosecutor had been controverted by appellant in a timely manner and a timely objection made, I do not see how the trier of the facts could properly hold, without an evidentiary hearing of some sort, that the accused was responsible for the witness’ inability to attend court without removing from the defendant the protective cloak of the presumption of innocence.
In any event, extreme care should be taken in these cases not to deprive a defendant of the right to a public trial guaranteed by Article 2, Section 10 of our Constitution. Since the record shows that “other persons” were present, the public trial requirements may have been met. See Commonwealth v. Trinkle, 279 Pa. 564 , 124 A. 191 (1924). Appellant made no objection, indicating that the trial was not public, and the presence of these “other persons” may have been adequate. To say the least, removal of a trial from the regularly designated place for holding court should be discouraged and should never be done except in the case of extreme emergency.
I cannot accept the premises on which the majority relies on appellant’s first point. I agree fully with the majority opinion on appellant’s second point and would affirm the judgment.
I am authorized to state that Mr. Chief Justice Harris and Mr. Justice Byrd join in this opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7818989. Public record. Not legal advice.