Reed v. State
| Citation | 157 Ind.App. 334,300 N.E.2d 108,38 Ind.Dec. 205 |
| Decision Date | 21 August 1973 |
| Docket Number | No. 2--373A63,2--373A63 |
| Parties | Ralph REED, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Court of Appeals of Indiana |
Frank E. Spencer, Indianapolis, for appellant.
Theodore L. Sendka, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.
On August 16, 1972 Appellant was charged by way of affidavit of the offense of carrying a pistol without a license under IC 1971, 35--23--4--3, Ind.Ann.Stat. § 10--4736 (Burns 1956 Repl.), to which he entered a plea of not guilty on October 4, 1972. On October 18, 1972 this cause was set for trial on November 3, 1972. On October 31, 1972 the trial counsel appearing for Appellant (not present Appellant counsel) filed a written motion for continuance which stated:
'1. That the attorney for the defendant has a trial in this same Court in State of Indiana vs. Ronnie M. Murry at 9:30 A.M. on November 3, 1972.
2. That the attorney for the defendant has State of Indiana vs. Gary Shrum, in Municipal Court No. 10 at 2:00 P.M. on November 3, 1972.
3. That the attorney for the defendant has State of Indiana vs. James E. Babbit in Municipal Court No. 10 at 2:00 P.M. on November 3, 1972.
4. That the attorney for the defendant has State of Indiana vs. Louis Houston in Juvenile Court at 3:30 P.M. on November 3, 1972.
5. That the Houston case has been previously continued.
6. That the above case was scheduled by Pro Tem Judge Hughes at pre-trial conference with full knowledge that a motion for a continuance would be filed to eliminate the conflict.
7. That the above case has not been previously continued.
8. That the attorney for the defendant wants to continue the above case to have time to prepare an adequate defense, to have time to present this defense at trial, and to eliminate the conflict in the scheduling of cases.'
This motion for continuance was overruled and a bench trial was held on November 3, 1972 at 2:30 P.M. The Appellant was found guilty and sentenced for a determinate period of three (3) years.
On this appeal the Appellant asserts error on the denial of said continuance and the insufficiency of the evidence to support the conviction. It should be noted that no error was asserted in Appellant's motion to correct errors with reference to the admission of any evidence.
The Appellant does not contend that his motion for continuance was based on statutory grounds as found in IC 1971 35--1--26--1, Ind.Ann.Stat. § 9--1401 (Burns 1956 Repl.). Therefore, the ruling on it is within the discretion of the trial court. As a general proposition petitions for continuance are not favored and will only be granted in furtherance of justice on a showing of proper grounds. Miller v. State, 256 Ind. 296, 268 N.E.2d 299 (1971), and Calvert v. State, 251 Ind. 119, 239 N.E.2d 697 (1968). The record discloses that Appellant's trial counsel was present and presented a vigorous defense. There was no assertion in the motion to correct errors here or that the quality of the representation of Appellant at his trial was impaired. Apparently Appellant's counsel was able to work out the conflicts in his schedule on the date of trial and to be present and properly represent Appellant. We realize that there are enormous pressures on busy trial judges and busy trial lawyers who constantly fight the clock and the calendar. There is a demand and duty on the trial judge to provide a speedy and fair trial. In this case the trial judge provided a speedy trial and the Appellant has failed to demonstrate anything which renders it unfair.
Turning to the sufficiency question we must commence with the precise charge against the Appellant, which was:
'BE IT REMEMBERED, That on this day personally came the undersigned affiant, who being duly sworn, upon his oath says: That Ralph Reed late of said County and State, on or about August 16, 1972, at and in the County and State aforesaid, did then and there unlawfully and feloniously carry upon his person a Pistol, without a license therefor, in a place not his place of abode or his fixed place of business, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Indiana.'
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