Smith v. State
| Decision Date | 23 September 1892 |
| Docket Number | 16,538 |
| Parties | Smith v. The State |
| Court | Indiana Supreme Court |
From the Washington Circuit Court.
Judgment affirmed.
S. H Mitchell and R. B. Mitchell, for appellant.
A. G Smith, Attorney General, W. T. Branaman, Prosecuting Attorney, and F. L. Prow, for the State.
The appellant was indicted, tried and convicted of an assault and battery with felonious intent.
The first specification in the assignment of errors calls in question the ruling of the court in refusing to grant the defendant a continuance of the case. Two reasons for a postponement of the trial were stated in the affidavit--one because of want of time and opportunity to prepare for trial the other because of the absence of witnesses.
The affidavit shows that the alleged crime was committed on the 3d day of October, 1891; and that the defendant was arrested and placed in jail the next day, and therein confined up to the filing of the affidavit; that from the time of his arrest and incarceration he had been without means to employ counsel or prepare and look up his defence to the charge; that he had no counsel employed to defend him until the present term of this court, and about the 9th day of December, 1891; that at the last term of this court a firm of attorneys appeared for him, when he was arraigned on affidavit and information filed in the cause, but counselled him no further in the matter, and received no employment from him; that, having no means, he has been without counsel or assistance of any kind, except as above stated, until the 9th day of December, when the indictment was returned; that he has now employed said firm of attorneys, but that since their employment this court has been in session continuously, and his attorneys have been engaged in other suits pending in said court, and have been unable for want of time to look after his defence or make any preparation whatever therefor; that the place where the said alleged crime is said to have been committed is in the town of Little York, a distance of sixteen miles from this county seat, where affiant has been confined in jail, and that most of his witnesses reside in and about said town; that he has had no opportunity to look up his said witnesses and counsel with them, or the means with which to have others to do so. Said affiant further says that he has a good legal and valid defence to said charge contained and set forth in the indictment herein, and will, he believes, be prepared to present the same by the next term of this court.
Subsequent portions of the affidavit refer to the absence of witnesses, and need not be noticed in this connection.
We are of the opinion that the court did not err in refusing to continue the trial of the cause upon the showing above set forth.
It does not appear but that the appellant might have procured the services of counsel upon his first incarceration as easily as upon the return of the indictment two months afterward, no change having taken place in his financial condition. If without means to employ an attorney, the court doubtless would, upon a proper showing, have appointed some one competent to prepare and manage his defence.
Over two and one-half months intervened between the commission of the crime and the time fixed for trial. The exercise of ordinary diligence would have enabled the appellant to have procured the services of some one skilled in the law, and not too busy to prepare his case for trial. Neither does the affidavit show proper diligence in the preparation for trial after the return of the indictment and employment of counsel. The fact that his attorneys were engaged in other suits pending in court was no excuse for an entire want of preparation for this one. If such was the case suits of this class would seldom be promptly tried.
If his attorneys were so engaged as to render them unable by the exercise of due diligence to make preparation for trial their own affidavits would have...
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