State v. Dwyer

Decision Date13 July 1925
Docket Number27297
Citation159 La. 399,105 So. 410
CourtLouisiana Supreme Court
PartiesSTATE v. DWYER

Appeal from Criminal District Court, Parish of Orleans; A. D Henriques, Judge.

Patrick Dwyer was convicted of offering a bribe to a police officer and he appeals.

Affirmed.

Thomas V. Craven, of New Orleans, for appellant.

Percy Saint, Atty. Gen., and Henry Mooney, Dist. Atty., and Eugene Stanley, Asst. Dist. Atty., both of New Orleans, for the State.

OPINION

ROGERS, J.

Appellant was charged with offering a bribe to a police officer of the city of New Orleans with the intent to induce the said police officer to allow and permit him to illegally run an immoral house, with immunity from arrest and prosecution for said offense, in violation of the provisions of Act 59 of 1878.

The accused was arraigned on March 27, 1925, when he pleaded not guilty. He was called for trial on Monday, April 27, 1925. On the oral motion of his counsel, suggesting the absence of a witness, one Lillian Martinez, who was necessary to his defense, and the counsel for the state agreeing thereto, a continuance was granted until Friday, May 1, 1925. The case was again called for trial on Friday, May 1, 1925, but the defense counsel, who had requested the continuance on April 27, 1925, was absent, and no reason for his nonappearance was furnished to the court or to the counsel for the state. No motion nor request was made by the defendant himself for a continuance; and the court thereupon appointed Stanley McDermott, Esq., to act as counsel for the defendant, requesting him to consult with the defendant and to ascertain if he was then and there ready for trial. After a conference of some 20 or 30 minutes, Mr. McDermott announced in open court that he was ready to proceed with the trial if the testimony of the witness Lillian Martinez could be secured. The court ordered an instanter issued for the absent witness and, she having been brought into court by the sheriff, then directed the trial of the case to be proceeded with. A jury was impaneled, and testimony was offered on behalf of the state, and witnesses, including Lillian Martinez, were examined on behalf of the defendant. The case was then closed, and, after hearing argument of counsel and receiving instructions of the court, the jury found the defendant "guilty as charged."

On May 20, 1925, the defendant,through his original counsel, filed a motion for a new trial, alleging, first, that the verdict was contrary to the law and the evidence; and, secondly, that the court erred in refusing to grant a continuance to the defendant in the absence of his attorney. This motion was refused, and defendant was sentenced to imprisonment in the state penitentiary at hard labor for a term of not less than 1 year, nor more than 14 months. Defendant then applied for and obtained an appeal to this court.

The case is before us on the bill of exception reserved to the ruling of the trial court in refusing the motion for a new trial.

The first ground set forth in the motion for a new trial does not present any question of law reviewable by this court. The sole issue under the second ground of the motion is whether the trial court acted legally in refusing to grant a second continuance because of the unexplained absence of counsel, where no continuance was requested by the accused, and where the court appointed counsel to represent him.

The general rule is that the granting or...

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7 cases
  • State v. Wilson
    • United States
    • Louisiana Supreme Court
    • 7 Enero 1935
    ... ... granting or refusing continuances. This court has time and ... again held that it would not interfere with the ruling of the ... trial court in refusing a continuance, unless there was an ... abuse of such discretion. Article 320, Code of Criminal ... Procedure; State v. Dwyer, 159 La. 399, 105 So. 410; ... State v. White, 156 La. 770, 101 So. 136; State ... v. Jack, 139 La. 885, 72 So. 429; State v ... Cloud, 130 La. 955, 58 So. 827, Ann. [181 La. 68] Cas ... 1913D, 1192; State v. Perry, 51 La.Ann. 1074, 1077, ... 25 So. 944 ... Did the ... trial ... ...
  • State v. Pouncey
    • United States
    • Louisiana Supreme Court
    • 27 Mayo 1935
    ... ... Code ... Crim. Proc. art. 320; State v. Perry, 51 La.Ann ... 1074, 1077, 25 So. 944; State v. Cloud, 130 La. 955, ... 58 So. 827, Ann. Cas. 1913D, 1192; State v. Jack, ... 139 La. 885, 72 So. 429; State v. White, 156 La ... 770, 101 So. 136; State v. Dwyer, 159 La. 399, 105 ... So. 410; State v. Flores, 169 La. 22, 124 So. 132; ... State v. Schemp, 172 La. 72, 133 So. 367; State ... v. Taylor, 173 La. 1010, 139 So. 463; State v ... Leahy, 175 La. 659, 144 So. 138; State v ... Florane, 179 La. 453, 154 So. 417. No such abuse of ... discretion ... ...
  • State v. Leahy
    • United States
    • Louisiana Supreme Court
    • 20 Julio 1932
    ... ... should not be interfered with, except when it appears that he ... has abused the discretion vested in him, and no abuse of his ... discretion appears in the present case. State v ... White, 156 La. 784, 101 So. 136; State v ... Dwyer, 159 La. 399, 105 So. 410; State v ... Williams, 162 La. 590, 110 So. 766; State v ... Scruggs, 165 La. 842, 116 So. 206; State v ... Taylor, 167 La. 1113, 120 So. 875 ... Bill ... This ... bill reads as follows: ... 'That ... on the trial of this cause on the ... ...
  • State v. Boone
    • United States
    • Louisiana Supreme Court
    • 1 Abril 1940
    ... ... the petit jurors, or that the defendant in any manner ... whatever has been prejudiced by the ruling of the trial ... judge. We will not, therefore, interfere with his ruling ... Article 320. See, also, State v. White, 156 La. 770, ... 101 So. 136; State v. Dwyer, 159 La. 399, 105 So ... 410; State v. Scruggs, 165 La. 842, 116 So. 206; ... State v. Taylor, 167 La. 1113, 120 So. 875; ... State v. Flores, 169 La. 22, 124 So. 132 ... Bill ... of Exception No. 2 was reserved to the judge's action, ... over defendant's objection, in permitting ... ...
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