O'Rourke v. State, 34439

• Decision Date: 20 June 1958
• Docket Number: No. 34439,34439
• Citation: 166 Neb. 866,90 N.W.2d 820
• Parties: John J. O'ROURKE, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.
• Court: Nebraska Supreme Court

Page 820

90 N.W.2d 820

166 Neb. 866

John J. O'ROURKE, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.

No. 34439.

Supreme Court of Nebraska.

June 20, 1958.

Syllabus by the Court

1. An application for postponement of time of trial of a criminal case is addressed to the sound discretion of the trial court and, in the absence of abuse of discretion disclosed by the record, a denial thereof is not error.

2. While it has been declared that the court has no discretion to refuse to enforce the accused's constitutional right to compulsory process, the court may, however, refuse to permit issuance of a subpoena which, it appears, may be an abuse of process, until the court has been informed of what testimony may be expected of the prospective witness.

3. A court is not required to issue compulsory process for any one whom accused may designate as a witness; the constitutional right to compulsory process requires such process for, and only for, competent, material, and resident witnesses whose expected testimony will be admissible

Donald N. Bykert, Lincoln, for plaintiff in error.

Clarence S. Beck, Atty. Gen., Richard H. Williams, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, WENKE and BOSLAUGH, JJ.

MESSMORE, Justice.

This is a criminal action brought in the district court for Lancaster County wherein the defendant John J. O'Rourke was charged in an information in substance as follows: That on or about November 1, 1957, while confined in the Nebraska State Penitentiary upon conviction of a felony, he did then and there unlawfully and feloniously break such custody and escape therefrom contrary to law. The defendant was duly tried and found guilty by the verdict of a jury. Following the overruling of his motion for new trial, the defendant was sentenced to serve a term of 5 years in the Nebraska State Penitentiary.

The defendant, as plaintiff in error, brings the case to this court for review and will hereafter be referred to as the defendant.

The information was filed in the district court for Lancaster County on February 4, 1958, and served on the defendant at the penitentiary on February 5, 1958. On February 19, 1958, the defendant was arraigned in the district court and entered his plea of not guilty. He appeared without counsel, and after his plea was entered, he was ordered held for trial to be held March 3, 1958. Several motions were made by the defendant which were overruled. On March 3, 1958, the defendant filed a motion for continuance on the grounds that he had not had an adequate amount of time to prepare for trial, and had access to law books for a period of only 4 days. This motion was overruled.

The defendant assigns as error irregularities in the proceedings of the court and abuse of discretion by the court as a result of which the defendant was prevented from having a fair trial in the following particulars: (1) The refusal of the court to grant a continuance; and (2) the refusal of the court to call additional witnesses upon request by the accused.

The record discloses that on September 18, 1957, the defendant was committed to the Nebraska State Penitentiary under a commitment to that institution from the district court for Dawson County for a period of 10 years at hard labor. He was reported missing on November 1, 1957, while on a work detail in the cannery at the penitentiary. A security guard missed the defendant about 1 p. m. of that day. The defendant was apprehended in Iowa, and on November 2, 1957, was returned to the penitentiary by officers assigned for that purpose. He told officers, after he was apprehended, that he walked through an unlocked gate in the wire fence that encircles the inner wall of the penitentiary. After the defendant was returned to the penitentiary he was placed in maximum custody.

With reference to the assignment of error relating to the granting of a continuance of which the defendant complains, the rules is as stated in Hyslop v. State, 159 Neb. 802, 68 N.W.2d 698, 703, as follows: 'An application for postponement of time of trial of a criminal case is addressed to the sound discretion of the trial court, and in the absence of abuse of discretion disclosed by the record, a denial thereof is not error.' See, also, Darlington v. State, 153 Neb. 274, 44 N.W.2d 468; section 25-1148, R.R.S.1943.

In the instant case 26 days intervened between the time of the filing of the information and the trial, and 11 days intervened between the time the defendant was arraigned and the trial. The defendant, at the time of trial, was offered every opportunity to have the services of counsel, which he declined, and elected to try his own case, as he had a right to do. The record is void of any showing that the defendant was in any manner prejudiced by a refusal to grant a continuance.

Defendant's assignment of error relating to his application for continuance of trial cannot be sustained.

Referring to the defendant's second assignment of error, Article I, section 11, of the Constitution of Nebraska provides 'In all criminal prosecutions the accused shall have the right to appear and defend in person or by counsel,...