123 Neb. 17 | Neb. | 1932
The plaintiff in error was convicted of the offense of receiving stolen property. The numerous assignments of error may be, for the purpose of our discussion, reduced to three: (1) The trial court erred in refusing to grant a continuance; (2) there is not’ sufficient competent evidence to support a conviction; and (3) erroneous instructions.
An application for a continuance is addressed to the sound discretion of the court. One accused of crime is entitled to a reasonable time to prepare for trial after the prosecution is commenced. What is a reasonable time must be determined in every case from the facts and circumstances presented therein. In the instant case the original complaint was filed April 11, 1931. Upon May 2 the state filed an amended complaint and a preliminary-hearing was held May 5. The information was filed in the district court on May 28. The defendant filed four motions for a continuance over the term as follows: May 28, June 1, June 3, and June 15, all of which were overruled and the defendant forced to trial June 15. The reasons for a continuance were that the defendant was ill and unable to prepare for trial; and that his wife was a material witness and that she was unable to attend his trial. The record shows that the defendant was ill from May 28, the date of the first application for a continuance, up to and including the day he was forced to trial. The case was originally set for trial on June 3. The defendant did not. then appear, and upon application of the state the court ordered the sheriff to bring the defendant in for the trial. The court appointed a medical commission to accompany the sheriff and examine the physical condition of the defendant. The report of this commission, the original of' which is not in the files, was that it was inadvisable for.
“It is not the policy of the law * * * to compel the party to go to trial until a reasonable opportunity has been given to procure the attendance of witnesses.”
In this case, the defendant being ill most of the time from the commencement of the prosecution, and all of the time' from the filing of the information, and in addition having a disturbed mental condition on account 'of the condition of his wife, did not have an opportunity to prepare for trial. This is especially true, since the prosecuting attorney changed the complaint by amendment against the defendant three times from the time the prosecution was commenced, indicating an uncertainty on his part as to what charge he could lodge against the defendant. The information upon which the case was tried in the trial court was filed May 28, and after-wards amended on June 15. This information charged the defendant with receiving and concealing 9 sets of harness, the property of 11 different persons, with the intent to defraud and knowing said property to be stolen. The state indorsed upon this information the names of 51 witnesses. It seems obvious to us that, under the circumstances as here related, the trial court should have granted a longer time to the defendant in making preparation for trial.
There are certain other things to be considered in determining whether or not the denial of a continuance is; reversible error. The trial occurred on June 15, at which time the defendant and his wife testified. The defendant was found guilty by the jury of receiving and concealing-four sets of harness, the property of four different persons, with the intent to defraud the owners and knowing-said property to be stolen. A motion for a new trial was filed in the case, which was overruled on October 5, 1931, more than three months after the trial. The defendant makes no showing at that time of newly discovered evidence, and we fail to see wherein the defendant was prejudiced by a denial of a continuance. It would seem that due diligence would require that he should secure any evidence that might be available to him within the period which elapsed after the trial. Where there is no showing of newly discovered evidence which he was not able to obtain at the time of the trial, we are unable to-say that he was prejudiced by reason of the denial of the continuance. It would be a futile gesture, inconsistent with the present trend of judicial opinion, to reverse-a judgment and remand a case because a continuance for preparation was denied by the trial court, where, so> far as the record shows, it would be tried again on the same evidence. Taking into account all the facts and' circumstances presented by the record, the denial of the' defendant’s motion for a continuance was not an abuse of discretion.
Is there sufficient competent evidence to; support the;
Rodd, who stole the harness, an ex-convict, which was unknown to defendant during the time he stayed at de
We have examined the instructions complained of by the defendant as confusing and prejudicing the jury against the defendant. The defendant has not pointed out wherein the instructions are prejudicially erroneous, and we are likewise unable to demonstrate that the portions of sentences quoted by defendant in his briefs from the instructions constituted reversible error. An examination of the instructions as a whole does not reveal any reversible error.
Considering all the circumstances in the case, a majority of the court are of the opinion that the sentence of three years is excessive. It is our judgment that the ends of the law and the good of society will be served by reducing the sentence to one year, which is hereby done under the authority of section 29-2308, Comp. St. 1929. As thus modified, the judgment of the district court is
Affirmed: Sentence reduced.