State v. Pouncey

• Citation: 182 La. 511,162 So. 60
• Decision Date: 27 May 1935
• Docket Number: 33367
• Court: Supreme Court of Louisiana
• Parties: STATE v. POUNCEY

162 So. 60

182 La. 511

STATE v. POUNCEY

No. 33367

Supreme Court of Louisiana

May 27, 1935

Appeal from Eleventh Judicial District Court, Parish of De Soto John B. Hill, Judge.

Travis Pouncey, alias Travis Douglas, was convicted of manslaughter and he appeals.

Affirmed.

R. S Williams and L. E. Colvin, both of Mansfield, for appellant.

Gaston L. Porterie, Atty. Gen., James O'Connor, Asst. Atty. Gen., A. B. Cavanaugh, Dist. Atty., of Leesville, and Lessley P. Gardiner, Sp. Asst. to Atty. Gen., for the State.

OPINION

ROGERS, Justice.

The defendant was charged with manslaughter and found guilty as charged. This appeal is from the conviction and sentence imposed thereunder.

A bill of exception was taken to the ruling of the trial judge refusing a continuance which was applied for on the ground that defendant's counsel had not sufficient time to properly prepare his defense.

In explanation of his ruling, the trial judge states that, at the time of the arraignment, defendant informed the court he was unable to employ counsel, and the court provided him with counsel. Two days before the case was set for trial, defendant secured counsel, but the counsel appointed by the court continued to represent him. The counsel appointed by the court did not join the counsel employed by defendant in asking for a continuance, and did not state to the court that he was unprepared to try the case. The record shows that defendant was represented on the trial by the counsel appointed by the court as well as by the counsel whom he had employed.

The granting or refusing of any continuance is within the sound discretion of the trial judge, and this court will not review his ruling, unless an arbitrary or unreasonable abuse of such discretion is presented. 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 appears here.

The continuance was applied for on the ground that the defendant had a defense to offer which would exonerate him from the charge, and that the counsel employed by defendant had not been able to interview defendant's witnesses and ascertain the nature of their testimony. Also on the further ground that several legal questions were involved in the defense which the counsel had been unable to examine so as to properly present them on the trial.

But the character of the defense was not set forth in the motion, and it was not alleged that defendant's witnesses were not present in court. Nor were the important legal questions requiring examination disclosed. Defendant made no attempt to establish by testimony that he suffered from the alleged lack of preparation on the part of the counsel he had employed; and we are not informed in what respect he could have offered a more ample defense if the continuance had been granted. Moreover, defendant was also represented on the trial by the counsel appointed by the court at the time of the arraignment. The counsel provided by the court did not join in the application for a continuance. It is not contended that he was unprepared to try the case, and it is not even pretended that he had not advised with the defendant and with the counsel employed by defendant two days prior to the trial.

The only other bill in the record was reserved to the overruling of a motion for a new trial. The motion was predicated on the averment that defendant had not had a proper trial, because his counsel had not had time to interview the witnesses to ascertain the facts and to properly present the case to the jury. Also on the averment of newly discovered evidence.

Apparently no attempt was made in connection with the motion for a new trial to show that the defendant had sustained any injury by the refusal of the trial judge to continue the case. The motion also alleged that the verdict was contrary to the law and the evidence. But the trial judge, in his statement per curiam, declares that the verdict of the jury was correct and in accordance with the evidence and the law in the case.

Unless it be shown that some special and sufficient reason was assigned and made good in support of an application for a continuance and that the trial judge acted arbitrarily and was guilty of a denial of justice, his rulings, in two instances, the one affirming the other, at...