Appellant was charged by affidavit with the offense of aggravated assault and battery. Following appellant’s plea of not guilty, a trial by jury was had and appellant was found guilty of simple assault and battery; a one thousand dollar ($1,000) fine was imposed and appellant was sentenced to the Indiana State Farm for a period of six [6] months.
The grounds asserted in appellant’s motion to correct errors are as follows:
“1. That the Court erred in failing to provide defendant with an attorney upon defendant’s request.
2. That the Court erred in allowing the defendant to proceed with a jury trial on a felony charge without the benefit of legal counsel.
3. That the Court erred in refusing to grant dеfendant a continuance for the purpose of securing legal counsel.”
The facts that gave rise to the grounds urged as error may be briefly summarized as follows. On June 23, 1969, appellant appeared in person and without counsel for arraignment on the above nаmed charge. Arraignment proceeded to the point where the appellant was asked if he was represented by counsel; upon appellant’s statement that he had secured counsel who was unable to be present and with whom he had been unable tо confer, arraignment was continued. On August 5, 1969, arraignment was re-commenced, appellant again appearing without counsel. At thаt time, appellant requested the appointment of counsel at public expense; a hearing upon the request was immediately had and the court determined that appellant was not an indigent. His request for appointment of counsel at public expеnse was therefore denied and arraign *316 ment continued, giving appellant time in which to secure legal assistance at his own expense.
On February 13, 1970, appellant again appeared without counsel for purposes of arraignment. Upon being ádvised of his rights, including his right to bе represented by counsel, appellant informed the court that he wished to proceed without benefit of counsel, that he understood the nature of the charges against him, that he had in no way been induced to plead either guilty or not-guilty and that he, in fact, wished to plead not-guilty. Appellant also requested that he' be tried by jury.
The cause was set for trial on May 13,1970, and on that date appellant appeared unaccompanied by trial counsel. Once again he was advised of his right to be represented by counsel but he stаted to the court that he desired to proceed without the benefit of legal assistance. A jury was sworn and the trial commenced. During thе state’s presentation of its case in chief, appellant requested a continuance for the purpose of consulting a lawyer indicating that he had gotten in “over his head”. The request was denied and appellant was ultimately found guilty of simple assault and battery; this appeal follows.
A criminal defendant’s right to be represented by counsel at trial where he so desires has long been recоgnized and studiously preserved.
Fitzgerald
v.
State
(1970),
Here the appellаnt was advised on several occasions that he had the right to be assisted by trial counsel; nevertheless he chose to procеed pro se. In such a situation it is reasonable to presume that the implications and consequences have been considered by the accused and that his decision is a conscious election to assume the risks incident to a trial conducted without benefit of counsel. One such risk clearly is the development of circumstances with which the accused will be incapable of coping. Nevertheless he has made a decision which we feel can reasonably be construed to be binding throughout the course of the trial.
What we have said should not be interpreted as precluding thе trial judge, in an exercise of his discretion, from allowing an accused a continuance where the delay can reasonably be accommodated. To say that he must, however, is to give unwarranted control over the trial to one accused and to subjeсt criminal proceedings to the possibilities of needless frustration and abuse. Here a jury had been sworn, evidence taken and valuаble judicial time consumed upon appellant’s representation that he would handle his own defense. To allow appellаnt, at that point, time in which to consult or retain counsel is an unjustified indulgence at the expense of judge, prosecutor, jury and attending witnesses, all of which could be avoided were appellant to merely indicate at the outset his wish to have assistance of cоunsel.
Appellant relies upon both
Fitzgerald
v.
State, supra,
and
*318
Grubbs
v.
State
(1970),
Likewise we see no support for appellant’s position in the holding of the Grubbs case. It was there said:
“When a judge sits on the trial of a criminal case in which the defendant has chosen to be his own lawyer, he must be especially acute and vigilant in governing the conduct of counsel and witnesses, in order to insure that it does not jump the tract (sic) and become an inquisition in which the sole end sought is conviction rather than a decision based upon lawful evidence.” Grubbs v. State, supra,255 Ind. at 416 ,265 N. E. 2d at 44 .
Appеllant has made no reference to any aspect of his trial thought to be erroneous and we are therefore unable to say that the trial judge failed in his duty to see that the proceedings were properly conducted. Rather appellant’s contentions relate solely to alleged error committed by virtue of the fact that he was not allowed time in which to retain counsel once his desire for representation was made known.
For the foregoing reasons, the judgment of the trial court must be affirmed.
Judgment affirmed.
Note. — Reported in