State v. Di Benedetto

• Decision Date: 04 March 1912
• Citation: 82 A. 521,82 N.J.L. 168
• Parties: STATE v. DI BENEDETTO.
• Court: New Jersey Supreme Court

82 A. 521

82 N.J.L. 168

STATE

v. DI BENEDETTO.

Supreme Court of New Jersey.

March 4, 1912.

Error to Court of Quarter Sessions, Essex County.

Joseph Di Benedetto was convicted of receiving stolen goods, and he brings error. Affirmed.

Argued June term, 1911, before GUMMERE, C. J., and PARKER and VOORHEES, JJ.

Franklin W. Fort, for plaintiff in error.

Wilbur A. Mott, Prosecutor of the Pleas, for the State.

GUMMERE, C. J. This case comes before us upon a strict bill of exceptions, and not under the 136th section of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863).

The defendant was convicted of the crime of receiving stolen goods. The indictment was found at the April term, 1910. The trial was postponed from time to time until the 10th day of January, 1911. On that day it was again postponed until the 23d of that month. A day or two later (about the 13th or 14th of the month) the court, on the application of the prosecutor, vacated the continuance until the 23d, and set down the trial for the 17th of January. Notice of this change in the date of trial was given to the defendant and his counsel. On the latter date (that is, the 17th), the prosecutor moved the case, and counsel for the defendant objected to its being tried, upon the ground that he was at that time engaged in a case then on in the Supreme Court circuit. The court thereupon postponed the trial for one day, namely, until the 18th. On that day Mr. S., a practicing attorney, appeared before the court representing the defendant, and stated that counsel who was originally retained was still engaged in the Supreme Court circuit, and opposed the moving of the case at that time. Notwithstanding his objection, the court ordered on the trial of the cause. At the close of the state's case the case of the defendant was also rested, and the case was thereupon submitted to the jury, which returned a verdict of guilty.

The first assignment of error is directed at the action of the trial court in advancing the trial after the continuance had been granted until January 23d. We have no doubt as to the power of the court to vacate an order by which the day for trial of an indictment has been fixed, and to direct that the trial be proceeded with at an earlier date than that originally named by the court. The question whether such a course shall be taken, or not, is one within the sound discretion of the court, and error cannot be assigned upon such action, unless there has been an abuse of such discretion. We find no such situation here. The ground upon which the state based its application was that unless the trial was speeded a material witness would have left the jurisdiction, and that his return into it was problematical. That this afforded a sufficient basis for the action complained of is not denied; but it is contended that the ordering on of the case in the absence of the defendant's original counsel, and while he was actually engaged in another court, constituted an abuse of judicial discretion. We think not. The engagements of counsel in other courts have never been considered as affording a compelling reason for postponing a trial. If such a doctrine should prevail, a ready means of defeating justice in a criminal proceeding would be afforded. We do not think the plaintiff in error should prevail on this assignment.

The next assignment is based upon the...