¶1concurring. I concur in the majority opinion. The only reason for this concurrence is my feeling that we should recognize that under Rule 27.3, Arkansas Rules of Civil Procedure, an affidavit, formerly required under Ark. Stat. Ann. § 27-1403 (Repl. 1979), is no longer an essential prerequisite for the granting of a continuance. If good cause is shown, it should not matter how it is shown. An affidavit (or affidavits) may provide the most appropriate vehicle for making the showing, as is often the case in motion practice. In my opinion, the defect in this case is not in the failure to file accompanying affidavits. It is in the failure to make the showing of good cause that might have been made by an affidavit.
¶2Section 27-1403 was made applicable to criminal proceedings by § 190 of the Criminal Code of 1869 [Ark. Stat. Ann. § 43-1706 (Repl. 1977)]. Section 27-1403 was a part of the Civil Code of 1869- We have adopted comprehensive new Rules of Criminal Procedure and of Civil Procedure. Although 27-1403 is not mentioned in the supersession order entered when the Rules of Civil Procedure were adopted, those rules include Rule 40 (b) which merely provides that the court may, upon motion and for good cause shown, continue any case previously set for trial. The Reporter’s notes state that the motion for continuance does not have to be in writing. There is no provision in the current Arkansas Rules of Criminal Procedure similar to Ark. Stat. Ann. § 43-1706. I do not see how § 27-1403, at least as applied to criminal cases, can be said to have survived.
¶3I fully recognize the fact that, since the adoption of the Rules of Criminal Procedure, I have written two opinions in which reference was made to Ark. Stat. Ann. § 27-1403. See Venable v. State, 260 Ark. 201, 538 S.W. 2d 286 and Kelley v. State, 261 Ark. 31, 545 S.W. 2d 919. Both of these opinions were written before the adoption of the Rules of Civil Procedure. In Venable, we considered the failure to file an affidavit as only one significant factor in appellate review of the exercise of the trial court’s discretion in denying a motion for continuance. In Kelley, we said that the denial of a motion not in compliance with § 27-1403 was not an abuse of discretion; however, we pointed out that, even if the testimony of the appellant as to the testimony of a witness constituted substantial compliance with the statute, appellant’s lack of diligence would have justified denial of the continuance.
¶4I firmly believe that the filing of an affidavit as to the anticipated testimony of an absent witness is the better practice and that a trial court would be justified in denying a motion for continuance based on the unavailability of a witness when there is no adequate showing of what that witness would testify. I do not believe that the formal affidavit is an absolute requisite for the granting of a continuance or is its absence a ground for denial of a continuance, if an appropriate showing is otherwise made.
¶5concurring. I agree that the case has to be affirmed on the two issues raised on appeal. However, to me the disturbing points are the obvious arguments that were not made during the trial or presented on appeal. The prosecuting attorney filed an amended information ten days before trial alleging five counts of incest in addition to the five counts of rape that had originally been charged. The additional allegations concerned the same five instances involved in the charges of rape. No objection was made to this late amendment. The record reflects that it would be contrary to Arkansas law for French to have been convicted for both rape and incest in several of the instances charged. Ark. Stat. Ann. § 41-105. There was no objection raised regarding this matter during the trial. The evidence was insufficient to support findings of guilty for rape and incest in at least four of the five circumstances considered. The record reflects that there was penetration in only one of those instances. That would mean a conviction could be had for only sexual abuse in the first degree, a less serious crime. There was no objection made regarding this matter at the trial. The Attorney General’s office filed a motion with this court on two occasions to require the appellant to file an adequate brief and we granted that request.
¶6I am not in favor of the so-called “plain error” rule whereby we review errors on our own, but in some instances the errors are so flagrant that they cannot go unnoticed. It may be that it was strategy in this case for French’s counsel not to make any objections but that is difficult for me to conceive. In any event, that strategy or oversight, whichever it may have been, is one that should not go unmentioned by us. It is in the best interest of the state that new trials not be necessary. That can only mean that a prosecuting attorney and a circuit judge have some duty to see that a trial is conducted so that no error is committed. It is a responsibility that cannot be totally borne by the counsel representing a criminal defendant. If any further proceedings are necessary in this case, then in my judgment those proceedings will not be solely the fault of counsel representing French.