Epley v. People

• Decision Date: 06 November 1911
• Parties: EPLEY v. PEOPLE.
• Court: Colorado Supreme Court

119 P. 153

51 Colo. 501

EPLEY v. PEOPLE.

Supreme Court of Colorado

November 6, 1911

Error to Larimer County Court; Fred W. Stover, Judge.

Austin Epley was convicted of selling intoxicating liquors in antisaloon territory, and he brings error. Affirmed.

Stark & Martin, for plaintiff in error.

John T Barnett, Atty. Gen. (Elmer L. Brock, of counsel), for the People.

HILL J.

The plaintiff in error was convicted of selling intoxicating liquors in antisaloon territory. He brings the case here for review upon error.

It is urged that the court erred in refusing to grant a continuance for the purposes of allowing the defendant to secure counsel and prepare for trial. He was arrested on September 3, 1909 arraigned upon the same day, pleaded not guilty, and his trial was set for September 8th following. While the record brought up does not disclose the fact, he was evidently admitted to bail, or allowed to go upon his own recognizance for his affidavit shows that he was in Denver between that date and September 8th, the date on which his case was set for trial. On the morning of the 8th, when his case was called for trial, he appeared in person and by counsel, and filed his motion for a continuance, which stated, as reasons therefor, that he was not served with the information until the 3d day of September, 1909; that he had not had sufficient time within which to prepare for his defense; that he had not beem served with a copy of the information, and was wholly unprepared to proceed with the trial; that by reason of the fact that he had not been served with a copy of the information, he did not know its contents, so as to intelligently acquaint his counsel with the crime with which he was charged; that since the time of his arrest until the date set for trial two legal holidays had intervened, and upon account thereof he was unable to employ counsel until the afternoon of Tuesday, September 7th; that his counsel was engaged in a hearing before the United States Circuit Court of Appeals on said 8th day of September; that his counsel had not been able to receive a copy of said information, and was wholly unprepared to proceed with the trial of the cause. This motion was supported by an affidavit of the attorney, a resident of the city of Denver, also one by the defendant.

These affidavits were practically a repetition of the statements in the motion, with no further details or reasons set forth in either.

The matter of granting a continuance is largely in the discretion of the trial court, depending upon the showing made, including the gravity of the offense, and other matters necessary to be considered, and, unless there is an abuse of such discretion, its rulings will not furnish grounds for reversal. Byers v. McPhee et al., 4 Colo. 204; Roberts v. People, 9 Colo. 458, 13 P. 630; Jarvis v. Shacklock, 60 Ill. 378; Graff v. Brown, 85 Ill. 89; Baumberger v. Arff, 96 Cal. 261, 31 P. 53.

It is very questionable whether this motion presents any reason why the defendant should have been allowed any continuance at all, other than to suit the convenience of certain counsel whom he desired to have represent him. There are no facts given why the defendant was entitled to the services of any particular counsel, or why his case could not have been defended by any counsel of ordinary ability. There are no facts presented why the defendant could not have secured counsel in his home city of Ft. Collins, the county seat of a large county, a city of considerable population, and unquestionably possessed of a very able bar of considerable number; likewise the adjoining cities of Longmont, Loveland Greeley, and Boulder, all of which, it is common knowledge, have a great many excellent attorneys; and we must assume, in the absence of a showing to the contrary, that in the exercise of ordinary diligence during the length of time allowed that the services of many excellent attorneys could have been secured. We do not mean by this that a defendant is not entitled, ordinarily, to the counsel of his choice, and district attorneys, as well as the courts, in the exercise of a sound discretion, should try to arrange cases so that counsel, as far as consistent, can be accommodated in this respect; but we cannot say that there was an abuse of discretion upon the refusal of the court to grant him a continuance for this reason, without any showing why he should have done so, when his own statements are to the effect that he left his home city, and many others intervening, and came to the city of Denver, and procured the services of one counsel only, who, it appears, upon the day set for trial in Ft. Collins was engaged in the trial of another cause in the federal courts in the city of Denver, and that he knew he would be thus engaged when he employed him, and without any showing to the trial court as to why he should have been entitled to the services of this particular counsel, or in what manner his rights would not have been protected by securing the services of other counsel, who could have appeared at that time. There is no showing that he attempted to secure other counsel, even in Denver, other than the one who, it appears, was employed for the purpose of presenting his motion for a continuance, and who the record shows continued in the case thereafter, and conducted the defense. It will be observed that the counsel desired had not theretofore been retained and relied upon to conduct the defense, and the case as the record shows, was not of a complicated...