{
  "id": 1664672,
  "name": "Warren GOLDEN v. STATE of Arkansas",
  "name_abbreviation": "Golden v. State",
  "decision_date": "1979-02-19",
  "docket_number": "CR 78-172",
  "first_page": "99",
  "last_page": "103",
  "citations": [
    {
      "type": "official",
      "cite": "265 Ark. 99"
    },
    {
      "type": "parallel",
      "cite": "576 S.W.2d 955"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
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    {
      "cite": "259 Ark. 96",
      "category": "reporters:state",
      "reporter": "Ark.",
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      "year": 1976,
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    {
      "cite": "440 S.W. 2d 244",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "year": 1969,
      "opinion_index": 0
    },
    {
      "cite": "246 Ark. 838",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1604064
      ],
      "year": 1969,
      "opinion_index": 0,
      "case_paths": [
        "/ark/246/0838-01"
      ]
    },
    {
      "cite": "260 Ark. 617",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1616779
      ],
      "weight": 2,
      "year": 1976,
      "opinion_index": 0,
      "case_paths": [
        "/ark/260/0617-01"
      ]
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  "last_updated": "2023-07-14T18:31:48.026206+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "We agree. Harris, C.J., and Fogleman and Holt, JJ."
    ],
    "parties": [
      "Warren GOLDEN v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Darrell Hickman, Justice.\nWarren Golden was convicted of first degree battery and, having two previous felony convictions, was sentenced to 25 years in the penitentiary.\nGolden alleges three errors on appeal: a continuance should have been granted because a key defense witness was absent; inflammatory photographs were admitted in evidence; and, the court commented on the evidence. We find no error and affirm the judgment.\nGolden was drinking whiskey with a man named Witt Wick, Jr. during the afternoon and night of January 8, 1977, and the next morning. They started drinking in DeQueen and ended up on a rural road. Apparently they built a fire beside the road and continued to drink and talk. They got into an argument, the subject of which is unknown, and Golden beat the other man with a rock. Thinking he had killed the man, Golden called the sheriff\u2019s office from his brother\u2019s house and said, \u201cI had to kill a man to protect myself.\u201d Officers searched the scene and could not find a body. Later that day, Witt was found on a nearby farm, was taken to the hospital, treated and subsequently released. Witt was not a witness, his whereabouts being unknown.\nGolden\u2019s defense was a lack of intent. His attorney had subpoenaed Dr. W. J. Jones, a physician, in connection with this defense. The witness, although served, did not appear at the trial and it is alleged it was error to try Golden without this witness.\nAfter the jury was impaneled, all parties announced ready for trial. After the witnesses were called to be sworn, the defense discovered several witnesses absent. There was a conference in chambers which is not reported. At noon, after the State had presented eight witnesses, the appellant\u2019s attorney offered an objection to proceeding in the absence of the witnesses. The defense said Dr. Jones\u2019 presence was necessary. It was determined that Dr. Jones had been served but was not present. The trial judge tried to get the parties to stipulate what the doctor\u2019s testimony would be. They could not because the defense said the doctor would testify he had treated Golden for black outs, or seizures; the State, having questioned Dr. Jones, said the doctor would testify that he had only treated Golden once and there was no record of black outs. It turned out that the appellant\u2019s lawyer had not actually spoken with the doctor, did not know him, and was relying solely on what someone else told him. The court ordered the sheriff\u2019s office to continue to try to locate the doctor and ordered the trial to proceed.\nAt the conclusion of the State\u2019s case, the appellant did not renew his motion for a continuance. Instead, the trial judge asked the appellant\u2019s attorney how many witnesses he would call. The lawyer said:\nIt looks like I haven\u2019t got but two or one unless Dr. Jones shows up.\nThe trial judge remarked:\nI don\u2019t know whether you\u2019ve heard this report or not, but the sheriff stated he had called his office and called his residence and was unable to locate him.\nThe grant or denial of a continuance is a matter within the trial court\u2019s discretion. Unless there is an abuse of this discretion we will not reverse the trial judge. Holland v. State, 260 Ark. 617, 542 S.W. 2d 761 (1976). In making such a judgment, a trial judge should consider whether there is good cause, taking into account the consent of opposing counsel, and also the public interest in a prompt disposition of the case. Rules of Crim. Proc., Rule 27.3 (1977).\nThe trial judge took all reasonable steps to locate and produce the witness. Golden\u2019s lawyer, not having talked to the witness, could not personally verify what the testimony would actually be. Also, at the close of the State\u2019s case, it was not insisted that the trial be continued. We conclude the trial judge did not abuse his discretion.\nPhotographs taken at the hospital of the victim were admitted over the appellant\u2019s objection. It is argued the photographs had no independent probative value and only served to inflame the passions of the jury. The photographs were black and white depicting the victim\u2019s bloody head. However, the charge was first degree battery, a serious offense. An element of first degree battery is the intent to inflict serious physical injury. Ark. Stat. Ann. \u00a7 41-1601 (Repl. 1977).\nAgain, the decision was one within the sound discretion of the trial judge. Davis v. State, 246 Ark. 838, 440 S.W. 2d 244 (1969). We find no abuse of that discretion.\nThe trial judge made this statement just before reading the jury instructions about confessions:\nMembers of the jury, you dealt with a confession in this case.....\nThe judge then went on to give five instructions about confessions, touching on the burden of the State to prove voluntariness, the province of the jury to accept or reject a confession, the weight to be accorded such statements, and the need for corroboration. It was not until after the instructions were given, closing arguments were completed, and the jury retired, that an objection was made to the judge\u2019s statement. It is argued it was a comment on the evidence, contrary to Ark. Const. Art. 7, \u00a7 23. The appellant should have objected at the time of the statement. Objections regarding instructions should be made before or at the time they are given. Rule 13, Uniform Rules for Circuit and Chancery Courts, Ark. Stat. Ann. Vol. 3A (Supp. 1977).\nEven if this were error, it does not appear to be the kind that could not have been cured by an admonition. Also, considering the instructions given on a confession immediately thereafter, it is not obvious that a mistrial should have been declared. Gammel & Spann v. State, 259 Ark. 96, 531 S.W. 2d 474 (1976).\nWarren Golden had a fair trial, free of prejudicial error and the judgment is affirmed.\nAffirmed.\nWe agree. Harris, C.J., and Fogleman and Holt, JJ.",
        "type": "majority",
        "author": "Darrell Hickman, Justice."
      }
    ],
    "attorneys": [
      "Ed Alford, for appellant.",
      "Bill Clinton, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Warren GOLDEN v. STATE of Arkansas\nCR 78-172\n576 S.W. 2d 955\nOpinion delivered February 19, 1979\n(Division II)\n[as Modified on Denial of Rehearing March 12, 1979.]\nEd Alford, for appellant.\nBill Clinton, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee."
  },
  "file_name": "0099-01",
  "first_page_order": 127,
  "last_page_order": 131
}