Ark. Code Ann. § 16-63-402 (2026)

Case Notes

Absent Witness.

Affidavit and motion insufficient to warrant continuance for absent witness. Richie v. State, 85 Ark. 413, 108 S.W. 511, 1908 Ark. LEXIS 545 (1908); Nix v. State, 124 Ark. 599, 187 S.W. 308 (1916); State ex rel. Greene County Bar Ass'n v. Huddleston, 173 Ark. 686, 293 S.W. 353 (1927); Estes v. State, 180 Ark. 656, 22 S.W.2d 172 (1929); Weaver v. State, 185 Ark. 147, 46 S.W.2d 37 (1932); Meyers v. State, 185 Ark. 892, 50 S.W.2d 234 (1932); Huddleston v. State, 186 Ark. 1197, 53 S.W.2d 1 (1933); Lynch v. State, 188 Ark. 831, 67 S.W.2d 1011 (1934); Shank v. State, 189 Ark. 243, 72 S.W.2d 519 (1934); Cathey v. State, 194 Ark. 1074, 110 S.W.2d 17 (1937); Carter v. State, 196 Ark. 746, 119 S.W.2d 913 (1938); Morgan v. Austin, 206 Ark. 235, 174 S.W.2d 562 (1943); Bryant v. State, 208 Ark. 192, 185 S.W.2d 280, 1945 Ark. LEXIS 390 (1945).

A motion which shows that the affiant has not been able to communicate with the witness and therefore did not know what she would testify is insufficient. State Life Ins. Co. v. Ford, 101 Ark. 513, 142 S.W. 863 (1912).

Where defendant moved for continuance in order to procure depositions or attendance of absent witnesses, the acts of diligence used in procuring the testimony should have been set forth in the motion. Lee v. State, 145 Ark. 75, 223 S.W. 373 (1920).

Motion for continuance on account of absence of witness beyond jurisdiction of court should show how attendance of witness could be had at next term of court. Freeman v. State, 150 Ark. 387, 234 S.W. 267 (1921).

A motion for continuance based on the absence of some particular witness must, to be sufficient, state that the witness is not absent by the consent, connivance, or procurement of the moving party. Davis v. State, 155 Ark. 245, 244 S.W. 750 (1922)Questioned byAllison v. State, 204 Ark. 609, 164 S.W.2d 442 (1942).

Because defendant had not located a witness to testify by time of trial and was basically requesting an open-ended continuance to search for some unnamed witness which he might not be able to afford, and because defendant waited until after the trial was in progress to move for a continuance and then filed no affidavit to establish the materiality of the anticipated evidence, trial court's denial of the motion for a continuance was not an abuse of discretion. Hill v. State, 321 Ark. 354, 902 S.W.2d 229 (1995).

—Admission by Adverse Party.

It was not an abuse of discretion to refuse a continuance for an absent witness where the adverse party admitted that the witness, if present, would testify as stated in the application for continuance. Inter-Ocean Cas. Co. v. Copeland, 184 Ark. 648, 43 S.W.2d 65 (1931); Ozan Graysonia Lumber Co. v. Ward, 188 Ark. 557, 66 S.W.2d 1074 (1934).

This section held not applicable where plaintiffs admitted that witness, if present, would testify to statement contained in motion for continuance made by one defendant, but other defendants objected to statement and upon its introduction stated in open court they did not believe the witness would so testify. Clift v. Jordan, 205 Ark. 245, 168 S.W.2d 403 (1943).

In action to recover value of crop, refusal to grant plaintiff's motion for continuance was held not to show abuse of wide discretion resting in trial judge. Morgan v. Austin, 206 Ark. 235, 174 S.W.2d 562 (1943).

—Affidavits.

Statement of facts which are expected to be proved by absent witness cannot be contradicted by counter affidavits or other testimony for purpose of defeating a motion for continuance. Lane v. State, 67 Ark. 290, 54 S.W. 870 (1899).

A motion for continuance because of the absence of a certain witness was properly overruled where it was not accompanied by the required affidavit. Smith v. State, 181 Ark. 592, 26 S.W.2d 899, 1930 Ark. LEXIS 170 (1930); Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992); Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995).

In order to obtain a continuance because of the absence of a witness, it is necessary that the movant support his motion by an affidavit stating what facts affiant believes the witness will prove and not merely the effect of the facts in evidence. Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976).

Where no affidavit accompanied defendant's motion for a continuance due to an absent witness, the motion was properly denied. King v. State, 314 Ark. 205, 862 S.W.2d 229 (1993); Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994).

This section requires the presence of an affidavit in order to justify a continuance due to a missing witness. Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993).

The courts have required that the movant for a continuance show by affidavit the likelihood of procuring the absent witnesses. Landreth v. State, 331 Ark. 12, 960 S.W.2d 434 (1998).

In an attempted capital murder case, the court did not err by denying defendant's motion for a continuance where, by omitting the affidavit, defendant failed to show his diligence in attempting to locate the two missing witnesses; further, without the expected testimony of the missing witnesses and those witnesses that he had not yet hired, defendant could not demonstrate that he was prejudiced by the denial of the continuance. Clark v. State, 358 Ark. 469, 192 S.W.3d 248 (2004).

Appellate Review.

A trial court's denial of motion for a continuance will not be reversed absent a clear abuse of discretion, and the defendant has the burden of showing an abuse of discretion. Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994).

Criminal Cases.

This section is void insofar as it will deny a person accused of a crime the use of process to bring witnesses before the court in criminal prosecutions. Graham v. State, 50 Ark. 161, 6 S.W. 721 (1887).

In criminal cases, continuances rest within the sound discretion of the court, and an abuse of that discretion must be shown. Wilson v. State, 188 Ark. 846, 68 S.W.2d 100 (1934).

An accused is entitled to compulsory process to compel the attendance of witnesses and this means the right to a delay until witnesses may be had at the trial, when they are within the jurisdiction of the court, in all cases wherein the authority and power of the court has been properly invoked. Carter v. State, 196 Ark. 746, 119 S.W.2d 913 (1938).

Specific method provided by this section must be followed substantially by one who would invoke the power and authority of the court to compel the attendance of witnesses. Carter v. State, 196 Ark. 746, 119 S.W.2d 913 (1938).

A person is not entitled to an indefinite continuance simply because a potential witness cannot be located; the elements of the diligence of the defense and the cooperation, or lack of it, on the part of the state are highly relevant in such cases, as is the likelihood of the movant ever procuring the witness. Doles v. State, 280 Ark. 299, 657 S.W.2d 538 (1983).

In murder prosecution, defendant was not entitled to indefinite continuance nor to have state admit veracity of hearsay statement of unavailable witness, where the state had tried and failed to locate the witness and there was no basis for believing that she would ever be located. Doles v. State, 280 Ark. 299, 657 S.W.2d 538 (1983).

Where a party has missing witnesses or other absence of evidence, and moves for a continuance pursuant to ARCrP 27.3, the filing of an affidavit by the movant is required under subsection (a) of this section. Wilson v. State, 320 Ark. 142, 895 S.W.2d 524 (1995).

Where state objected to continuance at trial, and defendant filed no affidavits in support of his motion, trial court did not abuse its discretion in denying defendant's request for continuance. Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995); Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997).

Trial court committed a clear abuse of discretion in granting the State of Arkansas a continuance when the alleged rape victim did not appear at defendant’s trial because the State then had time to secure the only witness who could have provided evidence sufficient to convict defendant. Had the continuance not been granted, the charge against defendant likely would have otherwise been dropped. Hudson v. State, 2014 Ark. App. 253 (2014).

Circuit court did not abuse its discretion in granting the State's request for a continuance in a prosecution for residential burglary and theft. The State learned of the second crowbar found at a material witness's residence the Friday before filing its motion on Monday, the State had scheduled that witness's deposition and asked only for a two-day continuance, and defendant asserted below only the issue of the State's diligence and failed to prove he was prejudiced by the continuance; even without the witness's testimony, the link between the crowbar, defendant, and the victims' home was established. Andruszczak v. State, 2017 Ark. App. 183, 518 S.W.3d 114 (2017).

Discretion.

The granting or refusing of a continuance is within the sound discretion of the trial court. Supreme Lodge Knights of Pythias v. Robbins, 70 Ark. 364, 67 S.W. 758 (1902); Missouri P.R.R. v. Berry, 191 Ark. 1165, 83 S.W.2d 531 (1936).

No abuse of court's discretion found in denying motion for continuance. Brickey v. State, 148 Ark. 595, 231 S.W. 549 (1921); Leach v. State, 229 Ark. 802, 318 S.W.2d 617 (1958).

The granting of a continuance is in the sound discretion of the trial court which will not be reversed unless the action is plainly erroneous or is a clear abuse of discretion. Baltimore & O.R.R. v. McGill Bros. Rice Mill, 185 Ark. 108, 46 S.W.2d 651 (1932); Perez v. State, 236 Ark. 921, 370 S.W.2d 613 (1963); Andrews v. Lauener, 229 Ark. 894, 318 S.W.2d 805 (1958); Wallace v. Hamilton, 238 Ark. 406, 382 S.W.2d 363 (1964); Thacker v. State, 253 Ark. 864, 489 S.W.2d 500 (1973); Conway v. State, 256 Ark. 131, 505 S.W.2d 758 (1974); Derrick v. State, 259 Ark. 316, 532 S.W.2d 431 (1976); Kelley v. State, 261 Ark. 31, 545 S.W.2d 919 (1977); Johnson v. State, 287 Ark. 426, 700 S.W.2d 786, 1985 Ark. LEXIS 2300 (1985).

The denial of a continuance when the motion is not in substantial compliance with this section is not an abuse of the trial court's discretion. Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993); Wilson v. State, 320 Ark. 142, 895 S.W.2d 524 (1995).

The factors to consider in exercising discretion over a continuance motion are the diligence of the movant, the probable effect of the testimony at trial, the likelihood of procuring the attendance of the witness in the event of a postponement, and the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993).

The burden is on the appellant to establish prejudice and abuse of discretion in the denial of a continuance. Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993).

On review, the alleged failure of defendant to file an affidavit regarding the testimony of a witness defendant sought to have testify at his trial was not addressed because the prosecutor did not object before the trial court that defendant failed to file the requisite affidavit; however, the court found that the trial court did not abuse its discretion in denying the motion for a continuance because defendant failed to show prejudice resulting from the denial. Stenhouse v. State, 362 Ark. 480, 209 S.W.3d 352 (2005).

Evidence.

On motion for continuance, testimony may be heard for purpose of showing a want of diligence in procuring testimony of absent witness, or want of good faith in making application, or an improbability that proposed testimony can be obtained. Lane v. State, 67 Ark. 290, 54 S.W. 870 (1899).

A continuance cannot be granted on an affidavit of counsel as to what his client told him. Morgan v. Austin, 206 Ark. 235, 174 S.W.2d 562 (1943).

Because the jury had before it ample evidence that the victim previously made claims of sexual abuse that no one believed, defendant was not prejudiced during his trial for sexual assault by the trial court's denial of his motion for a continuance, pursuant to subsection (a) of this section, to provide an investigator who could testify as to the victim's inconsistencies and untruths. Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008).

Factors to Be Considered.

Besides compliance with the statutory requirement of an affidavit, the court should consider several other factors in determining whether a continuance should be granted. Among these are the diligence of the movant in obtaining witnesses, the probable effect of the testimony at trial, and the likelihood of procuring the attendance of the witness in the event of a postponement. David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988).

In exercising its discretion concerning a request for a continuance to obtain the presence of a witness, the trial court should consider the following factors: (1) the diligence of the movant, (2) the probable effect of the testimony at trial, (3) the likelihood of procuring the attendance of the witness in the event of a postponement, and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the movant believes them to be true. Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990).

Continuance denied even though psychiatric report had not been filed in strict compliance with former § 5-2-305(d) (see now §§ 5-2-327, 5-2-328) where defendant failed to show any prejudice. Turner v. State, 326 Ark. 115, 931 S.W.2d 86 (1996).

Grounds.

This section does not require that a motion for continuance be reduced to writing and supported by affidavits, unless the opposite party demands it; but, if a motion on the grounds of surprise is overruled, the party complaining should set forth the facts constituting the surprise. Venable v. State, 177 Ark. 91, 5 S.W.2d 716 (1928).

Before the appellants would be entitled to a continuance because of the filing of a cross-complaint, it would be necessary for them to show that they had been misled to their prejudice and in what respect they had been misled. Williams v. Bullington, 195 Ark. 253, 111 S.W.2d 507 (1937).

Noncompliance.

Procedure required by this section held not followed. Malone v. State, 292 Ark. 243, 729 S.W.2d 167 (1987); Johnson v. State, 305 Ark. 580, 810 S.W.2d 44 (1991).

The denial of a motion which is not in substantial compliance with the statute is not an abuse of discretion. Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990).

As the state did not object to a continuance, appellant's failure to submit an affidavit is not fatal under this section. Rankin v. State, 57 Ark. App. 125, 942 S.W.2d 867 (1997).

Objection.

A party not objecting to a ruling granting a continuance is estopped from objecting on appeal to the form of the motion. Drown v. White River Levee Dist., 181 Ark. 629, 27 S.W.2d 793 (1930).

Subsection (a) mandates an affidavit to justify a continuance due to a missing witness when the state objects to the continuance. Wilson v. State, 320 Ark. 142, 895 S.W.2d 524 (1995).

Reviewability.

Revocation of defendant's suspended imposition of sentence was appropriate because he never argued to the trial court that the state had not filed an affidavit in accordance with subsection (a) of this section. In the absence of an objection at trial, any argument concerning the failure to submit such an affidavit would not be addressed on appeal. Dotson v. State, 2011 Ark. App. 731 (2011).

Time for Filing.

A motion for a continuance by a defendant should not be made before filing answer. Winter v. Bandel, 30 Ark. 362 (1875).

Court did not err in denying defendant's motion for a continuance to procure expert testimony where defendant waited until two days before the trial when he had had five months in which to obtain an expert. Cherry v. State, 347 Ark. 606, 66 S.W.3d 605 (2002).

Cited: Copeland v. State, 226 Ark. 198, 289 S.W.2d 524 (1956); Worley v. State, 259 Ark. 433, 533 S.W.2d 502 (1976); Jones v. State, 20 Ark. App. 1, 722 S.W.2d 871 (1987); Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996).