State v. King
| Decision Date | 08 April 1896 |
| Citation | 97 Iowa 440,66 N.W. 735 |
| Parties | STATE v. KING. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Warren county; J. H. Appelgate, Judge.
Defendant was indicted, tried, and convicted of the crime of seduction, and he appeals. Affirmed.Brown & Lacy, and H. McNeil, for appellant.
Milton Remley, Atty. Gen., and Jesse A. Miller, for the State.
The defendant was arraigned on the 28th day of March, 1895, and he took the statutory time to plead. On the 5th day of April, 1895, he filed a motion for continuance, based upon the absence of a witness. The state was given until the 9th of April to make resistance to the motion. Upon the filing of the resistance, the case, at defendant's request, was assigned for trial on the 11th day of April, subject to the motion for continuance. On the 12th of April the defendant entered his plea of not guilty, and asked for three days' time in which to prepare for the trial. The case was called for trial when reached in its regular order on the assignment, to wit, on the 13th day of April, and defendant then objected to being put upon trial. Thereupon the court upon its own motion continued the case until Monday, the 15th, at which time the trial was entered upon. Before proceeding with the trial, the defendant's counsel filed a motion for continuance, based upon the grounds: (1) That they had not had time to investigate the testimony of certain witnesses which the state proposed to offer by virtue of a notice served upon the defendant on the 8th day of April; (2) that the court so controlled its assignment of cases as to allow the statutory time for the giving of notice to defendant of additional testimony to run. It is contended that the court erred in forcing the defendant to trial at the time he did, and in overruling his motion for a continuance. It will be noticed that the assignment of the case for the 11th was made at the request of defendant's counsel. The record also shows that defendant was insisting, up to the day of trial, upon a hearing at an earlier date,--manifestly to take advantage of the statutory requirement that four days' notice be given the defendant of the production of witnesses whose names were not indorsed on the back of the indictment. It also appears that defendant, in his motion for continuance, was complaining of the action of the trial court in so arranging his assignment as to postpone his case. We have repeatedly held that the statute giving the defendant a right to three days after entering his plea in which to prepare for trial may be waived. Conceding, then, for the purposes of the case, that defendant did not have his statutory time in which to prepare for trial, we think he waived it by requesting that the case be assigned for a particular time, and by insisting upon a trial at a much earlier date than that at which the case was called. State v. Jordan, 87 Iowa, 86, 54 N. W. 63;State v. Thompson (Iowa) 64 N. W. 419.
2. The motion for continuance was properly overruled. The notice of the introduction of additional testimony was served on defendant on the 8th day of April, 1895, and the defendant was not put upon his trial until the 15th. More than four days had elapsed after the giving of the notice before the trial was commenced. Moreover, the two witnesses referred to in the notice were not used by the state. The conduct of the court with reference to its assignment of cases was not erroneous. It appears that it assigned the cases with an eye to an orderly and timely disposition of the business of the term, and its discretion in this regard cannot be interfered with.
3. It is argued that the prosecuting witness was not...
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