People v. Storer

• Decision Date: 21 April 1928
• Docket Number: No. 18402.,18402.
• Citation: People v. Storer, 329 Ill. 536, 161 N.E. 76 (Ill. 1928)
• Parties: PEOPLE v. STORER.
• Court: Illinois Supreme Court

329 Ill. 536

161 N.E. 76

PEOPLE

v.STORER.

No. 18402.

Supreme Court of Illinois.

April 21, 1928.

Error to Circuit Court, Tazewell County; Joseph E. Daily, Judge.

T. B. Storer was convicted of an assault with a deadly weapon, with intent to inflict on the person of another bodily injury, and be brings error.

Affirmed.H. A. Ballenger, of Pekin, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., Louis P. Dunkeberg, State's Atty., of Pekin, and Roy D. Johnson, of Springfield (Harold J. Rust, of Pekin, of counsel), for the People.

HEARD, C. J.

At the November, 1926, term of the circuit court of Tazewell county, plaintiff in error, T. B. Storer, was by a jury found guilty of an assault with a deadly weapon with intent to inflict upon the person of another a bodily injury where no considerable provocation appeared, and the circumstances of the assault showed an abandoned and malignant heart, and he was sentenced by the court to be imprisoned in the county jail of Tazewell county for a period of three months, to pay a fine of $300, and to stand committed to the county jail until the fine and costs were paid, or he was discharged according to law. The record is now before this court for review upon writ of error.

Prior to entering upon the trial, plaintiff in error made a motion for a continuance on the ground that his counsel did not have a reasonable time to examine the indictment and to prepare the defense, and that thereby he was deprived of his constitutional right, under section 9 of article 2 of the Constitution of 1870, to appear and defend in person and by counsel. He was indicted at the September, 1926, term of court, and at that term, when the case was called for trial, plaintiff in error, with J. P. St. Cerny as his attorney, appeared and presented a motion for continuance, in which it was set forth that sufficient time had not intervened for the preparation of the case. A continuance was granted to the November term. At the November, 1926, term the cause was set down for trial as the first case on the call on Monday, November 22. On Friday, November 19, in the absence of plaintiff in error, St. Cerny came into court, and informed the court that he had not been paid for his services, and that plaintiff in error refused to pay him therefor, and he withdrew as his attorney of record. On November 22 the court of its own motion appointed H. A. Ballenger and C. L. Conder as attorneys for plaintiff in error. On November 23 Conder withdrew from the case by leave of the court. Ballenger likewise asked leave to withdraw, but was refused by the court. The court set November 29 as the date for trial. On November 29 plaintiff in error filed a motion for a continuance, supported by affidavits of himself and Ballenger, in which the above facts were stated, and, in addition thereto, that plaintiff in error had attempted to have a conference with Ballenger on the morning of November 23, but was prevented from so doing by the fact that Ballenger was engaged in the circuit court at that time; that on the afternoon of November 23 plaintiff in error and Ballenger conferred for about 30 minutes, when Ballenger was summoned by telephone to the office of the master in chancery to attend the hearing of a cause in which Ballenger was guardian ad litem for minor defendants, and that they were prevented from further conferring until November 24; that Ballenger was not able to procure a copy of the indictment and list of the witnesses until about 4:30 in the afternoon of November 24; that Ballenger had had no sufficient time to prepare a motion to quash the indictment; that the list of witnesses had upon it twenty-seven names; that by reason of the short time intervening between obtaining a copy of the indictment and the list of witnesses and the time set for trial of the case Ballenger had been able to interview only a very small number of witnesses, and had been unable to ascertain in any appreciable degree the nature of the testimony on which the state or defense would rely. The motion to continue was denied, whereupon plaintiff in error was given leave to withdraw his plea of not guilty and move to quash the indictment. The motion to quash was denied, a plea of not guilty entered and the trial commenced on November 29.

[1][2][3] The affidavit did not state how many witnesses Ballenger had interviewed nor the length of time consumed in each interview. It does not appear from the affidavit that from November 24 to the date of the trial Ballenger had been engaged upon any other matters, nor does it appear that, if he had devoted his entire time to preparation for the trial of the case, he would not have been fully prepared. The witnesses all resided in Pekin, the county seat of Tazewell county, where plaintiff in error and Ballenger also resided. It does not appear from the affidavit that Ballenger could not have interviewed all the witnesses if he had used due diligence. There is very little conflict between the evidence given by plaintiff in error on the trial and that given by the great majority of the witnesses for the state. A defendant in every criminal case is entitled, under the law, to a reasonable time and full opportunity to prepare for his trial, and that right is one guaranteed to him by the Constitution. What is a reasonable time for the preparation of a case, and what time should be granted counsel for that purpose must necessarily depend upon the facts and circumstances of each case, and is a matter largely resting in the sound judicial discretion of the trial court, which will only be disturbed on review in a court of appeal when it is shown that that discretion has been abused. People v. Singer, 288 Ill. 113, 123 N. E. 327;Feinberg v. People, 174 Ill. 609, 51 N. E. 798. We are of the opinion that the evidence in the case does not show an abuse of discretion which would warrant a reversal of plaintiff in error's conviction upon that ground.

[4] The assault for which plaintiff in error was convicted was made upon Julius Stark. The chief of police and a motorcycle officer arrested plaintiff in error, and they testified that at that time he made...