297 P. 871 | Ariz. | 1931
Alan A. Stirling was convicted and given a term in the state prison for bigamy and his motion for a new trial being overruled he brought the case here for review.
The information was filed July 18th, 1930, and twelve days later he was arraigned thereon, counsel of his own selection appearing for him at that time. He entered a plea of not guilty and the case was set for trial for Monday, September 15th, 1930, but three days prior thereto, that is, on Friday, September 12th, his counsel, Mr. Timmons, requested that he be permitted to withdraw from the case. This request was granted and the court appointed Mr. James Forest to represent him.
When the case was called for trial at 9:30 A.M., September 15th, the defendant by his attorney moved for a continuance upon the ground that the latter had not had sufficient time to prepare for trial. It was stated in the motion that a proper defense required that certain records and instruments be secured from *122 Seattle, Washington, and that this could not have been done in the short period in which counsel had represented him. The motion was not supported by the verified statement of anyone and was denied by the court, the case thereupon proceeding to trial and resulting in a verdict of guilty.
The only assignment is that the court erred in denying appellant's motion for a continuance in order that his counsel might have sufficient time to prepare the case for trial and in overruling his motion for a new trial made upon the same ground. His position is that his counsel withdrew without notice to him or fault on his part and that the attorney appointed to represent him was entitled to more than the time intervening between Friday and the following Monday morning in which to prepare for trial in a serious felony charge which it took two days to try.
Motions for a continuance are addressed to the sound discretion of the trial court and it is only where the facts show an abuse of this discretion that appellate courts are justified in interfering. Quayle v. State,
From Friday until Monday was not, it is true, a very long time in which to prepare for the trial of one accused of a felony carrying such a heavy penalty as does bigamy, but up to that time appellant had been represented by counsel of his own selection and it nowhere appears in the record whose fault it was that he asked to be permitted to withdraw from the case. If it were appellant's he would have no ground for complaint, for clearly he could not discharge his counsel, or act in such a way as to cause him to withdraw so close to the day of trial, and then be permitted to say that the court abused its discretion in *123
forcing him to a hearing represented by counsel who had not had sufficient time to prepare. But he doubtless would have had just cause for complaint if his counsel had suddenly and without notice or fault on his part withdrawn and he had been required to go to trial within three days thereafter with counsel unfamiliar with the facts of his case provided the nature of his defense was such that the time was not sufficient for the latter to prepare for trial. "His right to have counsel, and to have his counsel prepare his case for trial," to use the language of Shaffer v.Territory,
However, it is very plain from the showing made that the court did not know whether appellant's defense was of such a character that his substituted counsel required more time than he had to prepare for trial. The only information it had on the subject *124
was that contained in the motion for a continuance and the reason assigned there was that in preparing the defense it was necessary to procure certain records and instruments from Seattle, Washington, and that it had been impossible to do this in the short time he had represented appellant. The motion did not, however, advise the court of the nature of these records or of the facts contained in them and it was, therefore, impossible for it to determine if they were material. Before it could be said that it abused its discretion in overruling the motion it is necessary not only that the court had this information, Sharp
v. Territory,
"In view of the fact that no statement upon which the continuance was asked was verified," says the court in People
v. Ward,
Finding no error in the ruling denying the motion for a continuance the judgment is affirmed.
ROSS and LOCKWOOD, JJ., concur. *125