6 Conn. Cir. Ct. 218 | Conn. App. Ct. | 1970
The defendant, having been convicted and sentenced on three counts of pool selling (§53-295), seeks reversal of the judgment upon two grounds assigned as error: first, that the court erred in denying his motion for a continuance; and second, that the court committed reversible error in denying him the right to a jury trial.
I
The assignment of error based upon the order denying a continuance challenges the discretion of the trial court and charges that the failure of the trial court to grant a continuance constituted an abuse of discretion.
Where denial of the constitutional right to counsel is asserted, its peculiar sacredness demands that we scrupulously review the record. The record shows the following. The defendant was arrested on November 4, 1967, and was charged in a four-count information with the crime of pool selling in violation of § 53-295 of the General Statutes. On November 20, 1967, the defendant filed with the court an application for the appointment of a public defender in which he declared, under the penalties of perjury, that he was “without money or other means . . . with which to employ an attorney.” That application was granted. The public defender was appointed to represent the defendant “through all the proceedings in the case in this court, unless sooner relieved by order of the court.” On December 4, 1967, upon a plea of not guilty to the charges alleged in the information, the defendant elected trial by jury. Some eleven months after the defendant
The sixth amendment to the federal constitution provides that “[i]n all criminal prosecutions, the
Considering all the facts and circumstances as disclosed by the record, we can find no basis for the defendant’s claim that his conviction was so tainted with unfairness as to amount to a denial of due process.
II
The defendant’s second contention is that “[t]he jury waiver was improper and in violation of the defendant’s constitutional rights.”
Section 54-82 of the General Statutes in pertinent part provides: “In any criminal case, prosecution or proceeding, the party accused may, if he so elects when called upon to plead, be tried by the court instead of by the jury; and, in such case, the court shall have jurisdiction to hear and try such case and render judgment and sentence thereon.” “Upon the question of the right of one charged with crime to waive a trial by jury, and elect to be tried by the court, when there is a positive legislative enactment, giving the right so to do, and conferring power on the court to try the accused in such a case, there are
The defendant had the right to trial by jury; he initially elected to be tried by jury when put to plea. The withdrawal of the case from the jury and his election to be tried by the court were his own voluntary act and a relinquishment of his right to a jury trial. “Withdrawal thereafter of Ms election by the accused could not be had as matter of right.” State v. Rankin, supra, 49. “The right to elect and then withdraw the election, and repeat this at will, would give the accused the opportunity to postpone the cause indefinitely.” Id., 50; see note, 46 A.L.R.2d 919.
We conclude there is nothing in the present record to enable this court to perceive that any of the rights of the defendant have been infringed.
There is no error.
In this opinion Cásale and Kinmonth, Js., concurred.
No formal ruling on the motion for permission to withdraw appears in the record; consequently, we have no way of knowing the date upon which the ruling was made. See 17 Am. Jur. 2d, Continuance, § 49. The finding recites that “[t]he defendant appeared in court with his attorney, the public defender, requesting the court to discharge him, as he wished to engage private counsel,” and “[t]he defendant’s request was granted by the court, and the public defender withdrew as defendant’s attorney.”
Vigilant concern for the maintenance of the constitutional right of an accused to the assistance of counsel has led us to examine the defendant’s prepared statement. It was the defendant’s claim that he had a “misunderstanding” with the public defender; that