Dolen v. State
| Decision Date | 02 May 1947 |
| Docket Number | 32191. |
| Citation | 27 N.W.2d 264,148 Neb. 317 |
| Parties | DOLEN v. STATE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. When a defendant in a felony case makes timely application for the production of a witness at his trial, or of the evidence such witness will give, and it is material to his defense, the court, or a judge thereof, should grant the request and, if necessary, allow a continuance of the trial until such evidence can be obtained, in strict accordance with the provision of section 29-1904, R.S.1943, and article I, section 11, of the Constitution of Nebraska.
2. An arbitrary refusal by the court to grant a proper request of a defendant in a felony case for the production of a witness, or his evidence by deposition, to the prejudice of such defendant, indicates an abuse of discretion.
3. It is the general rule that a reasonable time for the preparation of a defendant's case must be allowed in a felony case between the time of the appointment of counsel by the court for an indigent defendant and the date of trial.
J A. Hayward and L. R. Doyle, both of Lincoln, for plaintiff in error.
Walter R. Johnson, Atty. Gen., and Homer L. Kyle, Asst. Atty. Gen for defendant in error.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.
Defendant was convicted of the offense of receiving stolen whiskey and was sentenced to the penitentiary for two years. He gave bond for $2,500, and by a petition in error brings the case here for a review by his court.
The following are the assignments of error:
(1) The court erred in overruling defendant's motion for a continuance of the case so that defendant could take the deposition of Anna Hager, the one and only material witness to his defense.
(2) The court erred in refusing to grant a continuance of the trial in order to give defendant's attorney time in which to prepare a defense.
(3) The court erred in appointing counsel for the defendant and forcing him to trial on the same day that he was appointed.
(4) It was error and a violation of the constitutional rights of the defendant, under the provisions of Articles V, VI, and XIV of the amendments to the Constitution of the United States of America, in refusing to grant a continuance, both for the purpose of obtaining the deposition of a material witness to the defense, and for the purpose of giving the counsel for defendant time to prepare his case.
In order to determine whether the trial court arbitrarily denied the defendant the right to a fair trial under the law by refusing him a continuance, it will be necessary to briefly review some of the record in this case.
On Sunday night, February 3, 1946, two men broke into a liquor store in Lincoln and stole liquor therefrom, and on February 7, 1946 they were arrested and sentenced to the penitentiary for seven years.
On February 7, 1946, the defendant was arrested, charged with receiving such property knowing it to have been stolen. He was given a preliminary hearing in the municipal court on February 15, 1946, being present in person and with his attorney, Mr. Marx. Defendant pleaded not guilty, evidence was taken, and he was bound over to the district court and recognizance was fixed at $2,000.
In the distirct court, on April 27, 1946, a motion and affidavit of the defendant for continuance was filed, setting out that his only witness was placed on a bus and forced by the police to leave town, and that he had been unable to locate her 'until the past day or two,' that her testimony would be very material in his behalf, and that she 'knows that the goods were placed in my house without the knowledge it was stolen.'
The defendant filed another motion and affidavit on April 29, 1946, setting out in brief: That he was charged with a felony. That Mrs. Ann Hager was the only witness whose testimony would be material to his defense. That a day or two after his arrest the police ordered her out of town and a policewoman put her on the bus and ordered her not to come back to Lincoln. That this was after the police were told that her testimony was material to his defense. That only in the last day or two had he learned that she was residing at Fulton, Missouri. That he had told his counsel the testimony this witness will give, and was advised by counsel that such testimony was not only material, but absolutely essential, to his defense. The defendant also filed a poverty affidavit on April 29, 1946.
J. A. Hayward, an attorney, appearing in the case for the first time, filed an affidavit on April 29, 1946, in which he stated that defendant had discussed the case with him and told of a witness, Mrs. Ann Hager, who if present would testify to certain facts, and that her testimony would be highly material to his defense, but she is out of the state of Nebraska, living at Fulton, Missouri, and will not return to the state because she was told by the police not to return. Defendant asked that the court compel the attendance of this witness at his trial.
On April 29, 1946, the defendant was duly arraigned, pleaded not guilty, and the case was set for trial. Thereupon, the hearing was had on the motions and affidavits for continuance. The defendant called his former attorney, J. Jay Marx, and the state called the chief of police, Joe Carroll, and Gene Masters, captain of detectives.
Mr. Marx said that he represented this witness, Mrs. Anna Hager, in a divorce proceeding now pending in the same court, and he testified: 'I represented Mr. Ben Dolen until last week.' He testified that on February 15, 1946, at the time of the preliminary hearing, he told the chief of police, Joe Carroll, that Mrs. Hager was the only witness that Mr. Dolen would have and it was very important that she remain in the city so she could testify at the time the case was called in the district court, but that they had her pack up a few of her belongings and wired her husband for railroad fare, put her on a bus and told her if she came back they would put her in jail.
He said that later on, when the defendant, Ben Dolen, was in his office, he called her husband at Quincy, Illinois, over the telephone and he said she was not there, but was in some town in Missouri. He further testified that he had discussed with her the evidence in the Dolen case, and that in his opinion, unless she was there to testify, Mr. Dolen would not have a proper defense.
The two police officers testified to the effect that Mrs. Hager told them that she was scared of defendant Dolen, wanted to get away from him, and wanted to go back to her husband; that she wired her husband and got money from him to buy a but ticket, and she told them that she had been half crazy ever since they put the stolen liquor in the basement of ther house. It appears from the evidence that Mrs. Hager's baby was in College View, and that Miss Stahnke, of the police department, took Mrs. Hager out to College View, brought her baby in, and placed them on the bus. It also appears that Mrs. Hager bought a ticket for Omaha.
With these facts before us, we will discuss the law relating to this matter.
'Where any issue of fact is joined on any indictment, and any material witness for the defendant resides out of the state, or, residing within the state, is sick or infirm or is about to leave the state, such defendant may apply in writing to the court in term time, or the judge thereof in vacation, for a commission to examine such witness upon interrogatories thereto annexed, and such court or judge may grant the same, and order what and for how long a time notice shall be given the prosecuting attorney before the witness shall be examined.' Sec. 29-1904, R.S.1943. See, also, Sec. 25-1251, R.S.1943.
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... ... to permit speculation on its effect. We hold that denial of ... opportunity to consult with counsel on any material step ... after indictment or similar charge and arraignment violates ... the Fourteenth Amendment.' ... In further ... support of this contention Dolen v. State, 148 Neb. 317, 27 ... N.W.2d 264, Id., 151 Neb. 76, 36 N.W.2d 566, is [151 Neb ... 734] cited to the effect that a reasonable time for the ... preparation of a defendant's case must be allowed between ... the assignment of counsel by the court and the time of the ... trial. Also ... ...
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