Darlington v. State

• Decision Date: 31 October 1950
• Docket Number: No. 32881,32881
• Parties: DARLINGTON v. STATE.
• Court: Nebraska Supreme Court

Page 468

44 N.W.2d 468

153 Neb. 274

DARLINGTON v. STATE.

No. 32881.

Supreme Court of Nebraska.

Oct. 31, 1950.

Syllabus by the Court.

1. There is no specified time that must elapse between filing of an information or indictment and the commencement of trial thereon, except defendant may not without his consent be arraigned or required to answer it until at least one day after he has received a copy thereof.

2. The law requires that a person accused of crime be afforded reasonable opportunity to secure available evidence and appropriate time to prepare for trial.

3. An application for postponement of time of trial of a criminal case is addressed to the sound discretion of the trial court, and in the absence of abuse of discretion disclosed by the record, a denial thereof is not error.

4. Affidavits used as evidence on the hearing of an issue of fact must be offered in evidence in the trial court and embodied in a bill of exceptions to be available to plaintiff in error in this court.

5. All presumptions exist in favor of regularity and correctness of orders and judgments of courts of general jurisdiction, and he who asserts the contrary is required to establish a claimed defect or error by an exhibition of the record.

Carl E. Sanden, Lincoln, for plaintiff in error.

Clarence S. Beck, Attorney General, Walter E. Nolte, Deputy Attorney General, for defendant in error.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

David Darlington, defendant and plaintiff in error, was convicted of the crime of assault with intent to commit rape, and was adjudged to be confined in the Nebraska State Reformatory. By these proceedings he seeks to have the conviction and sentence vacated.

It was charged by the State that on March 18, 1950, defendant, more than 18 years of age, in Lancaster County, Nebraska, made an assault on a female child 16 years of age, previously chaste and not related to him, with intent to feloniously and foreibly rape her.

Complaint was made against him in the municipal court on March 22, 1950. He waived hearing, was bound over for trial, and an information was filed in district court on March 31, 1950. He was on April 4, 1950, arraigned, pleaded not guilty, and April 10, 1950, was by the court fixed as the time of the commencement of the trial of the charge against him. On that date, before the jury was impaneled, defendant by motion supported by affidavits requested that time of trial be postponed for a period from 30 to 60 days for the reason that he or his counsel had not had sufficient or reasonable time to prepare for the trial of the case, and that additional time was required to procure material evidence essential to a proper defense of defendant. The court denied the motion for a continuance and proceeded with the trial forthwith at the time previously designated. Defendant was admitted to bail on March 22, 1950, and has since been as liberty.

The only assignment of error made is that the district court erred in denying the motion of defendant for a postponement of the time of the trial.

Defendant insists that the prosecution was pressed forward to a conclusion with unauthorized and prejudicial haste. The area requested by him to be explored by the court in this case is defined by his declarations that the review in this court is not directly concerned with his guilt or innocence of the crime charged against him '* * * but is concerned with the unjustified speed with which the defendant was forced into trial,' and that he 'is not basing his plea on the merits of his defense, but on the deprivation of his right to properly prepare his defense * * *.'

The law does not specify any length of time that must elapse between the filing of an information or indictment and the commencement of the trial of a defendant in the district court for the crime charged therein against him, except that a defendant may not without his consent be arraigned or required to answer an information or indictment until at least one day shall have elapsed after he has received a copy thereof. Sections 29-1604 and 29-1802, R.R.S. 1943; Barker v. State, 54 Neb. 53, 74 N.W. 427; Hoctor v. State, 141 Neb 329, 3 N.W.2d 558; Duggan v. Olson, 146 Neb. 248, 19 N.W.2d 353, certiorari denied, 327 U.S. 790, 66 S.Ct. 803, 90 L.Ed. 1016. See also, Maher v. State, 144 Neb. 463, 13 N.W.2d 641, certiorari denied 323 U.S. 757, 65 S.Ct. 91, 89 L.Ed. 606. It is the requirement of law that every person accused of crime should be afforded reasonable opportunity to secure witnesses and evidence and appropriate time to prepare for trial. This is a substantial and valuable right and should be respected. Hubbard v. State, 65 Neb. 805, 91 N.W. 869; Dolen v. State, 148 Neb. 317, 27 N.W.2d 264; Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; 14 Am.Jur., Criminal Law, § 172, p. 886.

An application for a continuance is necessarily, from what has been said, addressed to the discretion of the trial court, and, in the absence of abuse of discretion disclosed by the record, a denial of the application does not constitute error. Absence of the exercise of a...