State v. Chase
| Decision Date | 10 September 1908 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Williams County; Goss, J.
M. B Chase and John Dwyer were convicted of keeping a gambling resort, and they appeal.
Affirmed.
Palda & Burke (Engerud, Holt & Frame, of counsel), for appellants.
Defendant is entitled to a day after plea to prepare for trial. Section 9935, Revised Codes 1905.
It is his right without statute. Miller v. U. S. 57 P 836; Goodson v. U. S. 54 P. 423; Johnson v State, 49 S.W. 618; State v. Pool, 23 So. 503.
Trial is not begun until jurors are sworn. State v Hazledahl, 2 N.D. 521, 52 N.W. 315; State v. Kent, 5 N.D. 516, 67 N.W. 1052.
Abuse of discretion to refuse time for preparation. Colean Mfg. Co. v. Feckler, 16 N.D. 227, 112 N.W. 993; State v. Pool, supra.
Statement of a witness not in defendant's presence not binding on latter. 2 Wigmore on Evidence, section 1071.
T. F. McCue, Attorney General, R. N. Stevens, Asst. Atty. Gen'l, and Van R. Brown, State's Attorney, for respondent.
Refusal of trial court to set aside a verdict is not reviewable, where there is any evidence to sustain it. Palmer v. People, 4 Neb. 73; Hurley v. State, 6 Ohio 400; State v. Crews, 16 Mo. 391; Wolf v. State, 11 Ind. 231; Guiles v. State, 6 Ga. 272; State v. Elliott, 15 Iowa 72; State v. Howell, 100 Mo. 659.
The state's attorney of Williams county filed an information against the defendants, charging them with jointly keeping a place as a gambling resort in violation of section 8974, Revised Codes 1905, and a conviction followed, after a joint trial before a jury, and they were sentenced to imprisonment in the county jail for 90 days, and to pay the costs of trial, taxed at the sum of $ 150. The defendants have appealed from the judgment, and, pending the appeal, were admitted to bail by the district court.
There are three grounds urged by them for a reversal of the judgment.
(1) The refusal of the district court to grant to them one day in which to prepare for trial after pleading to the information, as provided by section 9935, Revised Codes 1905, which reads as follows: "After his plea, the defendant, if he requests it, is entitled to at least one day to prepare for trial." The record shows that, after arraignment of the defendants on June 17, 1907, they were given one day in which to plead. At the opening of the court on the following day, the defendants' plea of "not guilty" was received and entered on the record. After the case had been called for trial, and the clerk had called the names of four jurors, who had taken their places in the jury box, the defendants moved for a separate trial, and asked for one day's time in which to prepare for trial. The court denied both requests. No exception is urged as to the ruling denying a separate trial, as the granting of separate trials in misdemeanor cases is discretionary with the trial court under the express terms of the statute. Section 9996, Revised Codes 1905.
The ruling upon the request for one day's time to prepare for trial presents a different question. If the request is made in time, it must be granted as a matter of right, and the granting or refusing of it involves no question of discretion. The statute does not fix any time or stage of the proceedings during which the request must be made. A reasonable construction of the provision is that the request must ordinarily be made immediately after the plea, and before any other step preliminary or preparatory to the trial is taken. Under this construction it should ordinarily be made before the calling of a jury is ordered. Although the right to at least one day for preparation for the trial is absolute if made in time, still by not making the request at all, or by not making it in time, the right thereto is waived. Unless a seasonable request is made for a delay of one day or more for preparation, the right thereto will be deemed to have been abandoned. As to whether the request is made in time, or should be granted although not made in time, may be controlled by particular circumstances, and in determining such matters, the action of the trial court will not be disturbed, unless there has been an abuse of discretion. In this case nothing appears in the record to show that any prejudice could have followed the action of the court in not granting the additional time. No fact was urged at the trial to show any reason for the postponement for one day. The request seems to have been based upon the fact that defendants' chief counsel was not present when the request was made. The defendants were represented by counsel during the arraignment and during the impaneling of a jury. After the jury was impaneled, the court on its own motion postponed the trial until the chief counsel arrived, and he thereafter conducted the defense. We think the trial court did not err in denying the request under the circumstances, as the request was not made in time, and no circumstance appears showing that the request should have been granted although not made within time. That the right given by the statute is waived unless made in time is amply sustained by authority. State v. Counts, 49 Tex.Crim. 329, 94 S.W. 220; State v. Harris, 100 Iowa 188, 69 N.W. 413; State v. King, 97 Iowa 440, 66 N.W. 735; State v. Jordan, 87 Iowa 86, 54 N.W. 63; State v. Fletcher (Tex. Cr. R.) 39 S.W. 116; People v. Winthrop, 118 Cal. 85, 50 P. 390.
(2) The defendants were arrested while card games were going on at the place where both defendants were at the time. One of the players had a conversation with one of the...
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