Owen v. Com.

• Decision Date: 21 June 1918
• Citation: 204 S.W. 162,181 Ky. 257
• Parties: OWEN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

204 S.W. 162

181 Ky. 257

OWEN v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 21, 1918

Appeal from Circuit Court, Christian County.

George Owen was convicted of housebreaking, and he appeals. Affirmed.

John C Duffy, of Frankfort, for appellant.

Chas H. Morris, Atty. Gen., and Overton S. Hogan, Asst. Atty Gen., for the Commonwealth.

THOMAS J.

The appellant and Pete Sims were jointly indicted by the grand jury of Christian county for the offense of housebreaking, and upon their joint trial under pleas of not guilty the jury returned a verdict, acquitting Pete Sims, but convicting the appellant and fixing his punishment at confinement in the penitentiary for a term of two years. Complaining of alleged errors committed during the trial, the appellant prosecutes this appeal.

The house alleged to have been broken into was an outbuilding belonging to Lemond Armstrong, and from which was taken a sack containing 50 pounds of dynamite. The ground upon which Sims was acquitted was that he was an idiot, and therefore not responsible for the act. The errors urged for a reversal are: (1) Error in not granting to appellant a continuance; (2) that the court should have peremptorily instructed the jury to find the appellant not guilty; (3) that the verdict is not sustained by the evidence; and (4) error committed by the court in the instructions given to the jury and in failing to give to the jury the whole law of the case.

Considering these in the order named: (1) The indictment was returned on March 5, 1918, and the next day the defendants were brought into court and their trial set for March 22, 1918. On that day Mr. Jno. C. Duffy, an attorney employed to represent appellant, made it known to the court that he had been recently employed, and that no witnesses for the defendant had been subp naed, and the case was set over until the next day, at which time still no witnesses had been subp naed, although a subp na had been obtained for them the day before, and Mr. Duffy filed his affidavit in which, after stating his recent employment, he says:

"That on the morning of March 22, 1918, the day defendant's case was set for trial; he had subp nas issued for said witnesses, and placed same in the hands of the sheriff of Christian county, and that at the time said case was called for trial none of said witnesses had been subp naed; that the case was then set over for this day, and that he has never been able to see any of the defendant's witnesses, and had no chance or opportunity to prepare defendant's case for trial since his employment in said case; and that no preparation had been made for said trial by any one else."

It further appears that another attorney had been employed by the defendant before or about the time of the filing of the indictment, and no affidavit of any character was filed by defendant. It will be observed that in the affidavit of defendant's attorney the name of no witness is given, or is any mention made of what any witness would testify, or whether any of the witnesses resided within the jurisdiction of the court. Neither does it appear anywhere from the record that any material witness failed to testify upon the trial. It is a well-known rule of practice in this jurisdiction, applicable alike to criminal and civil causes, that the trial court is vested with a reasonable discretion in the granting or refusing of continuances; and, unless it appears from the record that such discretion was abused, the action of the court will not be disturbed on appeal. It is equally true that to authorize a court to grant a continuance because of the absence of witnesses, from whatever cause such absence may be produced, it is necessary for the applicant to make known to the court, not only the names of the witnesses, but the substance of their testimony, and whether they are within the jurisdiction of the court so that their presence might be enforced. Unless such facts are made manifest to the court upon application, there would be, to say the least of it, no abuse of discretion in overruling the motion. The further statement that the attorney making the affidavit was unwell, and had not sufficient time after his employment to familiarize himself with the case, we regard as without merit under the circumstances of this case, because, as seen, other counsel had been employed by defendant, and it does not appear that his rights suffered in the least on account of the fact relied on. It has been held many times by this court that it is not an abuse of discretion to refuse continuances because of temporary disqualifications of one attorney when there were others employed in the case, and to justify a continuance under such conditions the circumstances would have to be peculiar, and clearly show that the defendant's rights would be prejudiced to refuse the continuance.

Since grounds 2 and 3 call for a consideration of the evidence they will be considered together. The offense was committed one Saturday night, and the...