Johnson v. State, No. 1268S203

Docket NºNo. 1268S203
Citation254 Ind. 465, 260 N.E.2d 782
Case DateJuly 30, 1970
CourtSupreme Court of Indiana

Page 782

260 N.E.2d 782
254 Ind. 465
Claude JOHNSON, Appellant,
v.
STATE of Indiana, Appellee.
No. 1268S203.
Supreme Court of Indiana.
July 30, 1970.

Page 783

Keith C. Reese, Indianapolis, for appellant; Rocap, Rocap, Reese & Young, Indianapolis, of counsel.

[254 Ind. 466] Theodore L. Sendak, Atty. Gen., James F. Biddle, Deputy Atty. Gen., for appellee.

ARTERBURN, Judge.

This is an appeal from a criminal action based upon an affidavit charging appellant with assault and battery. The defendant was convicted on May 13, 1968 as charged.

The first question presented for our consideration on this appeal is the refusal of the trial court to grant the appellant a continuance. The defendant's counsel orally moved the court for a continuance on the day of the trial. The motion was based upon the alleged illness of one of trial counsel, there being two. The motion was not supported by affidavit and was denied by the trial court. After the trial and conviction, defendant filed a motion for a new trial and accompanied the same by affidavits, the body of which read as follows:

'WILBUR H. DYE, being first duly sworn upon his oath says:

1. That he is an attorney at law, being duly admitted to practice in the Courts of the State of Indiana, including the Superior Court of Morgan County, Indiana.

2. That he is a partner with one Ralph Lett, also an attorney authorized and qualified to practice law in the Courts of the State of Indiana, including the Superior Court of Morgan County, Indiana.

3. That one Claude Johnson did retain Ralph Lett to represent him as an attorney in the case of 'State of Indiana -vs- Claude Johnson, Cause No. S68--S232' pending in the Superior Court of Morgan County, Indiana.

4. That said case was set for trial, and tried, on May 13, 1968. That on the date of said trial, the said Ralph Lett was hospitalized and was unable for that reason, to prepare for and appear in said Court to defend the said Claude Johnson.

5. Prior to the commencement of said trial, on said date, the affiant did move the Court for a continuance of said trial for the reason that the said Ralph Lett, Claude Johnson's attorney, was hospitalized and unable to appear and defend the said Claude Johnson. The Court

Page 784

overruled said Motion for Continuance and the affiant was required and [254 Ind. 467] forced to attempt and defend the said case, being unacquainted with the facts thereof.

6. The affiant further states that he did advise said Claude Johnson prior to the commencement of the trial of said cause, that he need not contact or produce in Court on the said May 13, 1968, any witnesses because he was certain that under the circumstances of his duly retained attorney being ill, that said continuance would be granted. When the Court overruled the motion for continuance, neither the affiant nor Claude Johnson had sufficient time to contact, confer with and produce witnesses on behalf of said defendant at said trial.

7. Because of the facts set forth in this affidavit, the affiant was forced to defend the said Claude Johnson without proper and adequate preparation and without the defendant, Claude Johnson being able to produce in Court any evidence on his own behalf.

WILBUR H. DYE

WILBUR H. DYE'

'RALPH M. LETT, being first duly sworn upon his oath, says:

1. That he is an attorney at law duly qualified and admitted to practice in the Courts in the State of Indiana, including the Superior Court of Morgan County, Indiana.

2. That prior to May 13, 1968, he was retained and engaged by one Claude Johnson to represent him in a cause of action entitled 'State of Indiana -vs- Claude Johnson' Cause No. S68--S232 in the Superior Court of Morgan County, Indiana.

3. That said case was set for trial by the Morgan Superior Court on May 13, 1968, and that on said date of said trial, the affiant was hospitalized and unable to appear in said Superior Court of Morgan County to defend the said Claude Johnson.

RALPH M. LETT

RALPH M. LETT'

The affidavits filed with the motion for a new trial cannot enhance the position of the appellant when he made his oral motion for a continuance prior to the commencement of the trial. The court at the time of this ruling had only the appellant's oral motion and nothing else upon which to base its ruling. When a motion for a continuance is [254 Ind. 468] made on other than statutory grounds or is not made in conformity with the statute, the granting of such a continuance rests within the sound discretion of the trial court, absent a clear showing of abuse of discretion. Jay v. State (1965), 246 Ind. 534, 206 N.E.2d 128, 207 N.E.2d 501, reh. den. 246 Ind. 539, 207 N.E.2d 501.

The matters alleged in appellant's affidavit with the motion for a new trial do not appear in the record to have been urged upon the court at the time the oral motion was made prior to the trial. The affidavits do not state the time of the commencement of the hospitalization of appellant's attorney, how much time the appellant had to retain new counsel, or whether appellant was unable to get counsel. Neither do the affidavits show why the application for a continuance was not made more promptly and some time before the trial date. In such a case, if a continuance had been denied, appellant would have had sufficient time...

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24 practice notes
  • Lawson v. State, No. 1177S797
    • United States
    • Indiana Supreme Court of Indiana
    • 25 Noviembre 1980
    ...Bertram v. State, (1978) 268 Ind. 368, 375 N.E.2d 1098; Bruce v. State, (1978) 268 Ind. 180, 375 N.E.2d 1042; Johnson v. State, (1970) 254 Ind. 465, 260 N.E.2d Appellant also presents a brief argument to the effect that police gained possession of the letter in violation of his Fourth Amend......
  • Snyder v. State, No. 3-477A97
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Agosto 1979
    ...of the trial court. Absent a showing of abuse of this discretion, a denial will not be reversed on appeal. Johnson v. State (1970), 254 Ind. 465, 260 N.E.2d 782; Sacks v. State (1977), Ind.App., 360 N.E.2d 21; Smith v. State (1975), Ind.App., 330 N.E.2d 384. In order to show an abuse of dis......
  • Harrison v. State, No. 2--973A194
    • United States
    • Indiana Court of Appeals of Indiana
    • 20 Noviembre 1975
    ...continuance rests within the sound discretion of the trial court, absent a clear showing of abuse of discretion.' Johnson v. State (1970), 254 Ind. 465, 467--468, 260 N.E.2d 782, 784. Reference to Special Judge Dougherty's stated reasons for denying the continuance, together[166 Ind.App. 61......
  • Dockery v. State, No. 3--1273A177
    • United States
    • Indiana Court of Appeals of Indiana
    • 16 Octubre 1974
    ...motion for continuance was within the discretion of the trial court. King v. State (1973), Ind., 296 N.E.2d 113; Johnson v. State (1970), 254 Ind. 465, 260 N.E.2d 782; Carlin v. State (1970), 254 Ind. 332, 259 N.E.2d 870; Reed v. State (1973), Ind.App., 300 N.E.2d 108, 38 Ind.Dec. 205 (tran......
  • Request a trial to view additional results
24 cases
  • Lawson v. State, No. 1177S797
    • United States
    • Indiana Supreme Court of Indiana
    • 25 Noviembre 1980
    ...Bertram v. State, (1978) 268 Ind. 368, 375 N.E.2d 1098; Bruce v. State, (1978) 268 Ind. 180, 375 N.E.2d 1042; Johnson v. State, (1970) 254 Ind. 465, 260 N.E.2d Appellant also presents a brief argument to the effect that police gained possession of the letter in violation of his Fourth Amend......
  • Snyder v. State, No. 3-477A97
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Agosto 1979
    ...of the trial court. Absent a showing of abuse of this discretion, a denial will not be reversed on appeal. Johnson v. State (1970), 254 Ind. 465, 260 N.E.2d 782; Sacks v. State (1977), Ind.App., 360 N.E.2d 21; Smith v. State (1975), Ind.App., 330 N.E.2d 384. In order to show an abuse of dis......
  • Harrison v. State, No. 2--973A194
    • United States
    • Indiana Court of Appeals of Indiana
    • 20 Noviembre 1975
    ...continuance rests within the sound discretion of the trial court, absent a clear showing of abuse of discretion.' Johnson v. State (1970), 254 Ind. 465, 467--468, 260 N.E.2d 782, 784. Reference to Special Judge Dougherty's stated reasons for denying the continuance, together[166 Ind.App. 61......
  • Dockery v. State, No. 3--1273A177
    • United States
    • Indiana Court of Appeals of Indiana
    • 16 Octubre 1974
    ...motion for continuance was within the discretion of the trial court. King v. State (1973), Ind., 296 N.E.2d 113; Johnson v. State (1970), 254 Ind. 465, 260 N.E.2d 782; Carlin v. State (1970), 254 Ind. 332, 259 N.E.2d 870; Reed v. State (1973), Ind.App., 300 N.E.2d 108, 38 Ind.Dec. 205 (tran......
  • Request a trial to view additional results

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