State v. Conley, 54006

• Citation: 176 N.W.2d 213
• Decision Date: 07 April 1970
• Docket Number: No. 54006,54006
• Parties: STATE of Iowa, Appellee, v. Ronald Michael CONLEY, Appellant.
• Court: United States State Supreme Court of Iowa

Page 213

176 N.W.2d 213

STATE of Iowa, Appellee, v. Ronald Michael CONLEY, Appellant.

No. 54006.

Supreme Court of Iowa.

April 7, 1970.

Victor N. Kennedy, Waterloo, for appellant.

Richard C. Turner, Atty. Gen., William W. Garretson, Asst. Atty. Gen., and David J. Dutton, County Atty., Waterloo, for appellant.

REES, Justice.

Appellant was convicted of breaking and entering the Tot to Teen Shop in Waterloo in violation of section 708.8, Code. He was sentenced to serve a term of not more than ten years in the penitentiary, and appeals from this judgment. We affirm.

Appellant advances four claimed errors on the part of trial court upon which he relies for reversal: (1) in sustaining the State's motion for continuance of trial on grounds the attendance of a witness could not be secured, appellant contending State had not complied with Rule 183, Rules of Civil Procedure, or Section 780.2, Code, 1966, (2) in overruling appellant's motion to direct verdict because of lack of proof of venue, (3) in overruling appellant's motion based upon claimed insufficiency of evidence to convict, and (4) appellant did not receive a full, fair and impartial trial secured to him by law.

I. Defendant was charged by county attorney's information with breaking and entering in violation of section 708.8, Code, 1966. Information alleges the date of the commission of the crime to have been January 15, 1969. The date of the arrest of the defendant does not appear in the record, but it does appear that a preliminary hearing was held on January 24, 1969, at which time the defendant was bound over. On March 14 the county attorney's information was filed and the defendant appeared, waived formal arraignment, waived time to plead, and entered a plea of not guilty. On the same date the court entered an order fixing trial for April 21, 1969 at 9 o'clock, a.m. On the morning of April 21, 1969, the State filed the affidavit of Robert W. Braun, an assistant county attorney, in which it was alleged the State's chief witness Donna Stephens had been served with a subpoena and had not appeared, and that without the testimony of the witness Stephens the State was unable to proceed to trial. A record was made and it was made to appear Mrs. Stephens had been served with a subpoena to appear on the Friday prior to April 21, but that as of April 21 she was out of the state and her attendance at trial court not be secured. The motion for continuance was verified and the affidavit of Assistant County Attorney Braun was appended thereto. Appellant complains the court erred in sustaining the motion for continuance and fixing date of trial for June 30, 1969, at 9 o'clock, a.m. Appellant strenuously resisted the motion to continue, asserting section 780.2, Code, 1966, and rules 182 and 183, R.C.P. had not been complied with because the motions for continuance must be supported by written affidavit showing the name and residence of the absent witness, but due diligence was shown to have been exercised by the movant to secure the attendance of the witness, and that the substance of the testimony of the witness should have been set forth by affidavit. Concededly the motion and its supporting affidavit did not embrace the matters mentioned in the resistance.

Section 780.2, Code, provides, 'The provisions of the code of civil procedure relative to the continuances of the trial of civil causes shall apply to the continuance of criminal actions, but no judgment for costs shall be rendered against a defendant on account thereof, except as in this code otherwise provided.'

The reference in the above cited section is obviously to rule 183, R.C.P.

Sub-section (b) of rule 183 provides, '(b) All such motions based on absence of evidence must be supported by affidavit of the party, his agent or attorney, and must show: (1) The name and residence of the absent witness, or, if unknown, that affiant has used diligence to ascertain them; (2) what efforts, constituting due diligence, have been made to obtain such witness or his testimony, and facts showing reasonable grounds to believe the testimony will be procured by the next term; (3) what particular facts, distinct from legal conclusions, affiant believes the witness will prove, and that he believes them to be true and knows of no other witness by whom they can be fully proved. If the court finds such motion sufficient, the adverse party may avoid the continuance by admitting that the witness, if present, would testify to the facts therein stated, as the evidence of such witness.'

The appellant insists the State was held to a strict compliance with the provisions of rule 183, and in view of the fact the motion for continuance and supporting affidavit failed to set out the substance of the testimony of the absent witness, the court erred in sustaining the motion to continue. The present section 780.2 of...