dissenting. The majority is reversing this case on a technicality centered on appellant’s failure to respond to the State’s offer of a continuance. This is done although appellant has failed to show he was prejudiced as we required in Renton v. State, 274 Ark. 87, 622 S.W 2d 171 (1981), failed to make a timely objection, and failed to apprise the trial court of the action he sought after his original motion was denied.
It is important to review the facts in this case because, in any event, Sharon West’s testimony regarding the truck is harmless error since the evidence of guilt and other identification of the truck was overwhelming. After a trial by jury appellant, Jerry Lee Nelson, was convicted of burglary and misdemeanor theft of property and was sentenced to 40 years in the state penitentiary and one year in the county jail. On February 6, 1979, at approximately 2:30 a.m., Officer Wiley of the El Dorado Police Department observed a Ford pickup truck driven by a black male pull out from behind the Hickory House restaurant at a high rate of speed. The officer found that a window in the rear of the restaurant had been recently broken; he then radioed a detailed description of the pickup truck to officers in Union County advising them of a suspected burglary. The radio report described a Ford pickup truck camper with a CB whip antenna on the rear bumper, a red and white novelty plate on the front bumper, and “H” as the first letter on the license plate. Shortly thereafter a Union County Deputy Sheriff saw such a truck parked on the side of the road; it was occupied by Johnny Lee Nelson, a black male; and steam was rising from the tires and hood. The appellant was arrested and in plain view on the floorboard of the truck were 45 flat and uncrumpled one dollar bills.
A subsequent investigation of the Hickory House revealed that someone had broken into the jukebox which would accept flat and uncrumpled one dollar bills. One such one dollar bill was found near the jukebox, and a second was found in the jukebox money changer. The owner testified that the jukebox should have contained between $40 and $80.
A witness, Sharon West, testified that she worked at the Roadrunner [gas station] and, at approximately 2:30 a.m., she saw a brown pickup truck with a camper and whip antenna come off Calion Road at a high speed and cut between the “pumps and the signs.” The next day she identified the truck she had seen. The Roadrunner was located on the route that would usually be taken in traveling from the Hickory House to the location of appellant’s arrest. The truck occupied by the appellant and the truck identified by Sharon West were one and the same; it was registered in the name of Johnny Lee Nelson.
The majority holds that the trial court should have excluded the testimony of Sharon West. Appellant filed a motion to discover the names and addresses of all persons the State intended to call as witnesses at the trial. It is acknowledged that the State unintentionally failed to furnish appellant the name of this witness.
After the jury was sworn but prior to opening statements, defense counsel moved “in limine to exclude the testimony of Sharon West on the grounds that we filed a motion for discovery. ’ ’ Defense counsel stated that he did not find out about the witness until voir dire examination and at that time was furnished with a copy of her statement. He further stated that “we feel she must be excluded under the Rules of Criminal Procedure.”
Defense counsel stated that he was completely and totally unprepared as far as this witness was concerned. The prosecuting attorney then offered:
... to make this witness available within 20 minutes and he [defense counsel] can interview her. Her testimony is not complicated. It’s short and to the point. I think — We’d make her available and he could interview her and then he would then have the beneficial use of that information.
The court refused to exclude the testimony of the witness stating that a subpoena had been issued for her at least 11 days before trial.
Although appellant did not specifically state which rule in the Rules of Criminal Procedure he was referring to, it was apparently Rule 19.7 (a) which provides:
(a) If at any time during the course of proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant thereto, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or enter such other order as it deems proper under the circumstances.
This Court has consistently held that in order to preserve an objection for review on appeal, it is necessary that the objection at trial be made at the first opportunity and the ground of the objection be sufficiently specific to apprise the trial court of the action which the objecting party desires the court to take. Rule 36.21, Ark. Rules Crim. Proc., Vol. 4A (Repl. 1977); Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980); Turkey Express v. Skelton Motor Co., 246 Ark. 739, 439 S.W. 2d 923 (1969); Goodwin v. State, 263 Ark. 856, 568 S.W. 2d 3 (1978); Cf. Rules 46 & 51, Ark. Rules Civ. Proc., Vol. 3A (Repl. 1979).
Here, appellant did not make his objection specifically and at the first opportunity to do so. Instead of objecting in the morning when he discovered the prosecutor’s mistake during voir dire examination, appellant waited until that afternoon after the jury had been sworn. Appellant was then offered a continuance by the State for the purpose of interviewing the witness. However, appellant not only failed to respond to this offer, but also failed to specifically request a continuance or otherwise apprise the trial court of what action he wanted it to take. The State had supplied appellant with a copy of the witness’s statement at voir dire several hours earlier. Under these circumstances only appellant knew whether a continuance would be beneficial to him, but he failed to object, move for a continuance, or nod in assent to the State’s offer of a continuance. We cannot presume error. Had appellant responded to the State’s offer and interviewed the witness he could have requested a continuance if he felt it necessary. Moreover, it can be said with certainty that the admittedly good faith mistake of the prosecutor was harmless since the evidence of guilt and identification of the truck was overwhelming.
Appellant has neither shown prejudice from the failure to disclose the name of the witness nor has he claimed that interviewing this witness would prove beneficial which we held was necessary on October 12, 1981, in Renton v. State, supra. The majority acknowledge that it must be clear that prejudice exists but overlook the fact that, here, it is not shown to exist and, in fact, it does not exist. Last week we required a showing of prejudice; this week we presume prejudice.
I am hereby authorized to state that Hays, J., joins in this dissent.