(after stating the facts.) x. The court did not err in refusing to grant a continuance. “Continuances in criminal as well as civil cases are, as general rule, within the sound discretion of the trial court, and a refusal to grant a continuance in a criminal case is never a ground for a new trial unless it is made to appear that such discretion has been abused to the prejudice of the defendant.” Lane v. State, 67 Ark. 293; Puckett v. State, 71 Ark. 62; Allison v. State, 74 Ark. 444, and many cases cited; 1 Crawford’s Digest, Continuances, II, c.
As to the witness Frank Neely, conceding that due diligence was used to obtain his testimony, the refusal of the court to continue on account of his absence was not prejudicial error. Appellant expected to prove by him that the State’s principal witness, William Dycus, had gone through the neighborhood where the killing occurred and had endeavored to incite people to join him in mob violence on appellant, and had made many threats of violence against him, and had thus manifested great prejudice against him. This would have been competent testimony as affecting the credibility of the witness Dycus. But Dycus was on the stand as a witness, and counsel for appellant did not lay the foundation for the introduction of such evidence by asking Dycus whether or not he did the things alleged in the motion for continuance calling his attention to the time and place. Had such questions been asked him, he might have answered in the affirmative. That would have ended the matter. Other proof would not have been necessary. As he was present, and knew whether or not he had engaged in the conduct, he should have been questioned on the subject. Appellant can not claim to be prejudiced by the refusal of the court to allow witnesses to testify to such conduct on the part of one of the witnesses, when the witness himself was not asked about it, and had not been given the opportunity to either affirm or deny the alleged conduct affecting his credibility as a witness. See section 3138, Kirby's Digest. It appears that appellant did ask this witness on cross-examination if he had taken an interest in the prosecution Against appellant, and if he and some other people “had made up money to employ” counsel in the case to prosecute appellant, and the witness answered that he had. So he may have answered affirmatively the other questions touching his alleged conduct looking to mob violence against appellant, had they been asked him. Appellant is not in a position to claim that he is prejudiced by the refusal of court to grant a continuance on account of the absence of Frank Neely.
By witness Smotherman appellant alleged that he expected to prove that about “one month before the killing of Eulick Knight, he (Knight) borrowed a pistol from Hum Carney with which he said he meant to kill both Ves. and James Harper within 48 hours.” And again that “about three weeks before the killing, at a crossroads, the defendants Ches. Harper and James Harper came in view, and missed meeting Eulick Knight in the due course of. their journey about forty or fifty yards, that he saw Eulick Knight unbutton his vest and place his hand upon a six-shooter pistol, and say that he was going to kill both the said Ches, and James Harper then and there.” Certainly no prejudice could have resulted to appellant from the refusal of the court to continue the cause on account of the absence of this testimony. It would have shown no more than that deceased had great ill-will toward the Harpers, and that on sundry occasions he made threats of violence against them, and which threats he never put into execution, although it did not appear that there was anything to prevent or restrain him from so doing. The probative result of such testimony would have been bad temper and evil disposition on the part of Knight towards the Harpers manifested by threats simply, without any overt acts showing an intention to carry them out. They were only competent to show the character of Knight for violence, and his disposition of mind toward appellant, and thus were to be considered by the jury in determining who was the aggressor. Palmore v. State, 29 Ark. 248; Brown v. State, 55 Ark. 593. But. for such purpose they were merely cumulative evidence. So likewise would have been the testimony of Sutton and Biddle, other witnesses named in motion.
The testimony of Felix Pursely for appellant was to the .effect that a few weeks before Knight was killed the witness-heard him say that Ves. Harper had put a tenant on the place,, that he (Knight) did not want him there, and that he was going to lick the tenant, and give him a certain number of hours, to leave, and if he did not vacate he (Knight) was going to burn down the house. Another witness, Harlow Carwell, testified that “in June before the killing took place, in August, he heard Knight say that if Ves. Harper did not give him a deed' to-one-half that farm he or Ves. would sleep in the Hatcher graveyard.” And the witness said that Knight’s manner convinced1 him that he was in earnest, and he communicated the conversation to appellant. This, together with the testimony of appellant: himself, and of William Dycus as to the quarrel on the evening prior to the morning of the fatal day, showed that appellant ancf Knight were living in a state of “undisguised hostility.” So as; to the purported testimony of the absent witness, Jesse Smother-man, appellant suffered no prejudice by a refusal to continue in order to enable him to procure it. However erroneous might be the reasons assigned by the court for refusing the continuance,, we find no error prejudicial to appellant in the ruling itself.
2. The other ground urged for reversal is that the court erred in not compelling the prosecuting attorney to elect on which' count of the indictment he would stand before the trial began;’ appellant contending in this connection that all of the testimony in relation to the acts and declarations of his father and brother' were prejudicial to him, as likewise was the argument of counsel' for the State that they were all in a conspiracy to kill Knight.
Whether the appellant’s counsel moved the court to require the prosecuting attorney to elect on which count in the indictment he would proceed before the selection of the jury, and before the trial began, or after the evidence had been concluded and the prosecuting attorney had made his opening argument, it is impossible to determine from the recitals of the record. For these recitals on this point are contradictory and confusing. But we-regard this as wholly immaterial in view of the testimony. The appellant admitted the killing, and there was abundant proof to1 warrant the conclusion that appellant and his father and brother had formed a conspiracy to kill Knight. Appellant himself says that, after the quarrel the evening before, he told his father and brother what Knight had done and said, and called on them for protection, and his own evidence shows that they stayed at his-house with him that night, after he .had sent his wife away, and. that they carried a pump shotgun over there. Appellant says he did the shooting with a “pump” gun. True, appellant says they had gone before Knight and Dycus came, and were not present when the killing occurred; but the circumstances as detailed by Dycus and other witnesses made it a question for the jury to-say whether or not there was a conspiracy between appellant and his father and brother, Ches., to kill Knight. If there was a conspiracy, it was immaterial when the prosecuting attorney made his election, for the testimony as to the acts and declarations of his father and brothér in furtherance of the conspiracy and while it was in progress, were competent (Benton v. State, 78 Ark. 284) on either count. Therefore we are of the opinion that no prejudice resulted from the failure of the prosecuting attorney to make his election before the trial began. In this view, the testimony of the witnesses and the argument of counsel which appellant sets up as his eleventh and twelfth grounds of the motion for new trial, and of which he so forcefully complains in his brief, could not avail him, even if his objections thereto had been made and duly preserved in the bill of exceptions.
The judgment is affirmed.