Appellant, Steve Vanata, was convicted of murder in the second degree and appeals to this court. The only error assigned is that the court improperly overruled his motion for continuance of the case. He was indicted at the April term, 1906, and on appellant’s motion the case was continued until the next term and set for trial on October 1, 1906; and on that day it was again postponed until December 12, when the trial was had. His counsel presented a motion for continuance on account of the absence of two witnesses who were alleged to be in Ft. Smith, Arkansas. It is also alleged in the motion that the witnesses had been present on a former day, and that a subpoena had been issued for them to the sheriff of Sebastian County, but that the same had not been returned.
Questions arising upon motions for continuance of cases are matters resting largely in the sound discretion .of the trial court, and rarely afford grounds for reversal unless it is made to appear that such discretion has been abused. Harper v. State, 79 Ark. 594, and cases cited.
The evidence of the absent witnesses, as set forth in the motion, was cumulative, and for this additional reason the refusal to continue the case was within the discretion of the court. Nor do we think that appellant’s showing of diligence is sufficient to warrant us in holding that the trial court abused its discretionary powers in overruling the motion.
Upon the whole, we think that the appellant had a fair trial, and that the evidence was sufficient to sustain the verdict. The fact that he killed the person named in the indictment is undisputed, and insanity is pleaded as the only defense. There was substantial evidence, of the same character as that set forth in the motion for continuance, tending to establish the plea of insanity. But the evidence was conflicting, and the jury found against the plea. Under the evidence disclosed in the record we do not feel at liberty to disturb the verdict. So the judgment is affirmed.