The appellant, Glenn Roberts, was convicted and sentenced to 21 years’ imprisonment under an indictment charging him with armed assault with intent to rob (KRS 433.150). He contends on this appeal that the trial court erred in refusing to grant a continuance; that the evidence was insufficient to support the verdict and he was entitled to a directed verdict; that there was a fatal variance in the indictment, evidence and instructions; and that the instructions were erroneous.
The statute, KRS 433.150, makes a capital offender of any person who “with an offensive weapon or instrument, unlawfully and maliciously assaults another, or who in any forcible and violent manner demands any money * * * or other thing of value from any person, with an intent to rob or commit a robbery upon him.” (Emphasis added.)
The indictment alleged that on March 17, 1960, the defendant and an unknown accomplice unlawfully, wilfully, feloniously, and maliciously, with force and arms by use of deadly weapons and in a violent and dangerous manner, tied the arms and legs of Ethel Taylor, demanded money under threat of death, and took some $6 in old coins, all in a violent and forcible manner and with intent to rob.
Briefly stated, the evidence given by the prosecuting witness was that the appellant, whom she recognized, and another man whom she did not know came to her home when her husband was away, demanded her money, tied her on the bed, poured lighter fluid on the bed and threatened to set it afire if she did not disclose the whereabouts of her money, put adhesive tape over her eyes and mouth, and ransacked the house. The witness afterward missed several silver dollars and old coins.
The question as submitted to the jury by the instructions was whether the defendant “unlawfully, wilfully, feloniously and maliciously, with force and arms, with an offensive weapon, or instrument, did assault Ethel Taylor, or by menace, or in any forcible and violent manner, demand any money from said Ethel Taylor, with the felonious intent then and there to rob the said Ethel Taylor,” etc. (Emphasis added.)
The arguments directed by appellant to the sufficiency of the evidence and the propriety of the instructions are essentially the same. The first is that the evidence, did not show the use of a weapon, as *642 charged in the indictment. The second is that in the absence of such evidence there was no basis for inclusion of that theory in the instructions.
The crime denounced by KRS 433.150.can be committed in two different ways, (1) by an assault with an offensive weapon or instrument with intent to rob, and (2) by a demand of money or property in a forcible and violent manner with intent to rob. Little v. Com., 1933,
The appellant was placed in custody at Cincinnati, Ohio, on May 6, 1960, waived extradition and was indicted on May 7, 1960, and was released on bond the same day. His trial was set for May 20, 1960. He arranged to be represented by attorney William S. Tribell, who in turn associated his brother, J. J. Tribell, as assisting counsel. Both attorneys had heavy trial schedules, and on May 10, 1960, a motion for continuance was made, supported by affidavit showing that the press of previous trial commitments would prevent an adequate preparation of the matter for trial on the 20th. The motion, was overruled at a hearing on the next day. Appellant and William S. Tribell spent Saturday and Sunday, May 14 and 15, in Cincinnati seeking witnesses to establish appellant’s presence in that city on March 17, 1960, at the time the crime was committed in Bell County, Kentucky. Meanwhile, the trial docket for May 20, 1960, listed several other cases ahead of this one, and it seems clear that counsel did not really expect to be forced to trial on that day.
On May 20 all of the other cases set were continued or disposed of without trials, and appellant’s case was called up and the Commonwealth announced ready. Defense counsel asked and were granted time to prepare an affidavit and motion for continuance. The affidavit showed that both attorneys had appeared in court nearly every day during the week or so immediately preceding May 20 (though several of the matters did not result in trials). It recited the details of the trip to Cincinnati, gave the names of two witnesses there who allegedly would say that appellant was in Cincinnati at the time the crime was committed, but who could not be present on the day in question, and stated that those witnesses had furnished the names of other witnesses whom counsel had not yet been able to locate and interview. The affidavit did not set forth why the two witnesses could not be present or what efforts had been made to secure their attendance (at a later hearing, following the trial, it was disclosed that one of them resided in Newport, Ky.). Moreover, the appellant himself was at all times free to continue the search for witnesses even though counsel may have been detained by other matters. The judge was familiar with so much of the work of defense counsel as had taken place in his court and was of the opinion they had adequate time to prepare appellant’s case. He therefore overruled the motion for continuance.
When the motion for continuance was overruled counsel advised appellant, in the presence of the court, that he would have to plead guilty or they would be unable to *643 represent him. The appellant, protesting his innocence, declined to plead guilty and stated he would have to discharge the attorneys, who then moved that they be permitted to withdraw as counsel. The court overruled this motion, whereupon the attorneys proceeded to leave the courtroom. The court then offered to appoint new counsel to conduct the defense, but appellant refused, stating that he preferred counsel of his own choice. A jury was impaneled and the case proceeded to trial at once. Appellant made no statements, offered no evidence, and did not question the witness for the prosecution. A verdict ■finding him guilty and fixing his punishment at 21 years followed. On the same day (the last day of the term), in order to preserve the appellant’s rights on appeal, attorney William S. Tribell prepared and filed motion and grounds for new trial.
Findings made a part of the record show that in proceeding to trial without defense counsel the trial court believed from all 'the circumstances, including the attitude and remarks of counsel and the apparent lack of surprise on the appellant’s part when they withdrew, that the walkout was planned and staged with appellant’s foreknowledge. Certainly there are grounds for suspicion that this is true (it is hard to resist the inference that the entire maneuver was practiced with an eye on the recent decision in Schneider v. Com., Ky.1960,
Even if appellant had accepted the appointment of counsel it would have been incumbent on the court to continue the case, since the right to counsel “means counsel with reasonable opportunity to prepare the case.” Shelton v. Com., 1939,
We do not sustain appellant’s position that the trial court erred in overruling the motions (or either of them) for continuance. While reasonable minds may differ as to whether its discretion was wisely exercised, certainly there was no clear abuse.. But we do find it necessary to reverse on the ground that, being denied a reasonable opportunity to secure a replacement of his own choice to represent him at his trial, the appellant did not receive a fair trial. Criminal Code of Practice, § 271, subd. 7.
The conduct of counsel in flouting the authority and obstructing the orderly process of the trial court in this case is indefensible, and they were properly fined for contempt. It is easy for a lawyer after a series of adversities in court to find comfort in assuming personal animosity on the part of the judge or prosecutor, or both; and equally hard to face the possibility that some or all of the fault may be his own. In any event, wherever the fault may lie, nothing is so destructive of the public confidence in the courts and the’legal profession and, ultimately, of *644 the whole system of justice, as a public show of carping and contempt within the profession itself. We recognize the courage of counsel in this case and defend the right of any lawyer to disagree with the court so long as he keeps within the bounds of propriety. But the capacity to accept disappointment without bitterness should be a part of the standard courtroom equipment of every lawyer. No court wishes to refer the conduct of counsel to the bar association for disciplinary action, but that is the proper remedy should the aggravation transcend the adequacy of contempt proceedings.
The judgment is reversed with directions that a new trial be granted.