¶1concurring. Although I am well aware of the problems of circuit judges in maintaining docket currency and affording a speedy trial in criminal cases, I reluctantly concur in the result reached in this case. My reluctance is attributable to my recognition of the problems encountered by appointed counsel in affording effective assistance, in the limited preparation time afforded here, to one charged with such a grave offense based on such inexplicable conduct. I am forced to agree, however, that prejudice in this case is not so obvious that we can say there has been such a manifest abuse of the broad discretion vested in the circuit judge in the matter of continuances to relieve appellant of any showing of prejudice. It is only because appellant failed to properly demonstrate prejudice that I concur.
¶2The principal arguments advanced on behalf of appellant in this respect are:
1. When the case was called for trial, one and one-half days after the appointment, appointed counsel had been unable to interview any of the witnesses for the prosecution and had been provided only a narrative report of interviews of three witnesses (unidentified in the record) by the public defender, who apparently quickly (and appropriately) abandoned the investigation when a conflict of interest appeared.
2.Physical evidence pertinent to the state’s case was not made available for examination by newly appointed counsel until the day the case was set for trial.
5. Inadequate opportunity for medical examination, in view of the bizarre conduct alleged and a history of prior psychiatric problems experienced by appellant.
4. Character witnesses from Tucson, Arizona, where appellant had lived until three months prior to the alleged offense, could not reach Fayetteville in time to testify.
¶3Appellant concedes that the burden of showing abuse of discretion lay upon him. He has failed to show:
1. The names of witnesses not interviewed by appointed counsel and the testimony or information which could have been elicited from them.
2. The content and inadequacy of the public defender’s narrative report furnished his counsel.
3. The inadequacy of appointed counsel’s examination of the physical evidence and the revelations which examination would have afforded.
4. The history of his psychiatric problems.
5. The names of character witnesses who would have come to Fayetteville and testimony which would have been given by them.
¶4The above list of omissions is intended to be illustrative and not exhaustive.
¶5In Thacker v. State, 253 Ark. 864, 489 S.W. 2d 500, we held there was no abuse of discretion in the denial of a continuance to a defendant in a criminal case, where the movant failed to file any affidavit or to produce evidence showing the facts to be proved by an absent witness, the affiant’s belief in their truth, the materiality of the anticipated testimony, and due diligence on the part of the defendant [as required by Ark. Stat. Ann. §§ 27-1403, 43-1706 (Repl. 1964)] or that there was any probability that absent witnesses would be available. The failure to file such an affidavit is a critical factor, to say the least, in appellate review of the trial court’s action in denying a continuance. Thacker v. State, supra; Leach v. State, 229 Ark. 802, 318 S.W. 2d 617. The failure to file such an affidavit, where the motion is based upon absence of witnesses, has been held fatal to an appellant who seeks reversal on that basis. Carter v. State, 196 Ark. 746, 119 S.W. 2d 913. While other grounds for the motion are not required to be so shown, reliance was here placed entirely upon counsel’s conclusional statements. It is extremely difficult to assess the prejudice to the defendant in the absence of such a showing.
¶6Lest it be said that appellant’s appointed counsel were unable to produce supporting evidence for the motion for continuance in the limited time available, I point out that they were not thereby foreclosed. Even though a motion for new trial is no longer a requisite for appellate review, it is still a permissible procedure. Ark. Stat. Ann. § 43-2704 (Supp. 1971). A trial court may grant a new trial when the defendant’s substantial rights have been prejudiced by a verdict, if the court is of the opinion that the defendant has not received a fair and impartial trial. Ark. Stat. Ann. § 43-2203 (Repl. 1964). The circuit court’s refusal to grant a continuance would have been a proper ground tor such a motion, if it had been made to appear that there was an abuse of discretion or manifest denial of justice. See Figeroa v. State, 244 Ark. 457, 425 S.W. 2d 516; Jones v. State, 205 Ark. 806, 171 S.W. 2d 298; French v. State, 205 Ark. 386, 168 S.W. 2d 829; 58 Am. Jur. 2d 325, New Trial, § 117. On making such a motion, appellant would have been afforded an opportunity to tender evidence to show prejudice, if it was impossible to do so at the time of his motion for continuance. See Tyson v. State, 196 Ark. 1179, 120 S.W. 2d 29; Gross v. State, 242 Ark. 142, 412 S.W. 2d 279; Cooper v. State, 215 Ark. 732, 223 S.W. 2d 507; Pinson v. State, 210 Ark. 56, 194 S.W. 2d 190; 58 Am. Jur. 2d 422, New Trial, § 204.
¶7Since appellant failed to avail himself of his opportunities to make a showing of prejudice and to afford the trial judge a chance to review his action denying a continuance in the light of evidence not before the court at the time it was denied, I concur.
¶8Although there is no fundamental difference in the basic reason for my reaching the same result arrived at through the reasoning of the majority opinion, I feel compelled to state my approach to the question because I cannot subscribe to that portion of the majority opinion which seems to find insulation against appellant’s complaint about the denial of his motion for continuance in his and his attorneys’ responses to the circuit judge’s interrogation that he had no complaint about the trial. Statements that the appellant was satisfied with his attorneys’ presentation of his case, their efforts to obtain attendance of all the witnesses he desired and their consultation with, and advice to, him are a far cry from an admission that counsel could not have been better prepared if given more time for investigation and his case put in a better light if other evidence, not available at the time of trial, had been presented, particularly when appellant’s responses are qualified by saying that "they (cóunsel) did the best they could with what they had.”
¶9For the reasons I have stated, I would affirm the judgment.