195 Ky. 725 | Ky. Ct. App. | 1922
Opinion or the Court by
Affirming.
Lawrence T. Piercy, the appellant, was indicted jointly with Thomas Keith and Monk Wilson in the Madison circuit conrt, nncler sections 1241a-l and 1241a-3, Kentucky Statutes, for confederating and handing together for the purpose of injuring P. W. Wells, and it
.In the opinion in the Keith case, reported in 195 Ky. at page 635, the facts with reference to the offense with which appellant is charged, and in which he took a leading part, are set out. On this appeal, only one error is assigned for a reversal of the judgment, viz., the overruling of appellant’s motion for a continuance, when the case was called for trial at the February, 1922, term of court.
The offense charged in the indictment was committed on December 2,1921. Appellant was arrested on December 29th, after having been identified at Lexington by Wells the previous day. Immediately after the arrest he was taken to Madison county, but, within a few days, was returned to Lexington for an examining trial .in the United States Court on the charges pending against him in that court, and, after that trial, was returned to Madi- • son county for an examining trial, which was held by the county judge, and, in default of bond, he was incarcerated in the Clark, county jail. Shortly after his arrest on the charge in this case he employed Harry B. Miller, of Lexington, as his counsel, it being alleged in his affidavit for a continuance .that Miller had previously represented him and was his regular counsel. On February 7th an indictment was returned against him, and, upon the filing . of same, the case was assigned for trial to February 27th. When the case was called for trial on the latter date, appellant’s affidavit and that of his counsel were filed in support of his motion for a continuance. The motion was overruled, a trial had, and a judgment of conviction rendered. The only ground urged on this appeal for a reversal of the sentence is, as we have stated, error of the trial court in refusing to. grant a continuance.
Murphy v. Commonwealth, 92 Ky. 485, Penman v. Commonwealth, 141 Ky. 660, and McDaniels v. Commonwealth, 181 Ky. 766, are relied on as supporting the contention that the case should have been reassigned. These cases and others that might be cited enunciate a principle that has been uniformly adhered to in this jurisdiction, i. e., that the substantial rights of the accused must be protected with reference, to the time of trial, as well as in the course of trial, and that the right of accused to be represented by counsel necessarily carries with it the
While it has been uniformly and justly held that the right to a fair trial involves the right of a reasonable time in which (to prepare for trial and to present all available defenses, it is also well settled that a judgment will not be reversed for refusing to grant a continuance if it does not appear that the substantial rights of the accused have been violated by reason of the denial of the motion. The record in this case discloses no fact indicating that die accused was not as well prepared for trial at the February term as he would have been at a subsequent term. Where reasonable opportunity for preparation is shown, as in this case, it is not error to refuse to continue the proceeding unless the affidavit for a continuance states some material fact that could be éstablished by an absent witness, or discloses some relevant or competent circumstance that could be proved in the event of a continuance. Murphy v. Commonwealth, 92 Ky. 485; McDaniels v. Commonwealth, 181 Ky. 766; Watkins v. Commonwealth, 149 Ky. 29. An application for a continuance is a matter addressed to the sound discretion of the trial court, and its rulings on such questions will not be disturbed in the absence of a showing that the discretion has been abused. Caudill v. Commonwealth, 155 Ky. 578; Kelly v. Commonwealth, 165 Ky. 483.
Applying these rules, intended to safeguard the rights of the accused and to insure to him a fair trial, necessarily including the right of a reasonable opportunity to prepare for trial, and also intended to expedite the trial of cases so far as it is consistent with justice and fairness, we are unable to see wherein there was an injudicious exercise of the authority of the trial court in overruling the motion for a continuance and requiring appellant to proceed to trial.
Nor do we perceive any force in the suggestion that the sentence imposed in the Keith case, supra, as compared to that given in the instant case, indicates that ap
Finding no errors in (the record prejudicial to the substantial rights of appellant, the judgment is affirmed.