State v. Sipe

• Decision Date: 14 June 1949
• Docket Number: 47443.
• Citation: 37 N.W.2d 914,240 Iowa 872
• Parties: STATE v. SIPE.
• Court: Iowa Supreme Court

37 N.W.2d 914

240 Iowa 872

STATE v. SIPE.

No. 47443.

Supreme Court of Iowa

June 14, 1949

Russell Decker, Ames, for appellant.

Robert L. Larson, Attorney General of Iowa, Don Hise, First Assistant Attorney General of Iowa, Ed J. Kelley, County Attorney, Story County, Ames, for appellee.

HAYS Justice.

From a conviction and judgment for operating a motor vehicle upon the public highways while intoxicated, the defendant appeals.

Appellant's first assigned error is to the effect that the trial court committed error in overruling his motion for a continuance.

The Information, charging the offense to have occurred on October 23, 1948, was filed October 25, 1948 at which time the appellant appeared, waived formal arraignment and entered a plea of not guilty. The case was assigned for trial on November 1, 1948. On the morning of November 1, 1948 appellant filed a motion for a continuance, supported by his affidavit, as authorized by Section 780.2, Code 1946, I.C.A and Rules of Civil Procedure 182(a) and 183(b). The trial court immediately overruled the same and entered the following ruling in the court docket: 'Defendant present with his counsel as the case is called for trial seven days after it was set, the defendant files a motion for a continuance with no affidavit of the alleged witness or the attending physician; it is overruled, * * *'.

Section 780.2, Code 1946, I.C.A., makes the Rules of Civil Procedure relative to continuances of civil causes, applicable to continuances of criminal actions.

Rule 182(a) R.C.P., requires that motions for continuance shall be filed without delay after the grounds therefor become known to the party or his counsel.

Rule 183(a), R.C.P., provides for the allowance of a continuance for any cause not growing out of the fault of the applicant, which satisfies the court that substantial justice will be furthered thereby.

Rule 183(b), R.C.P., states that all such motions based on absence of evidence must be supported by the affidavit of the party, his agent or attorney and must show, (1) name and residence of the witness, (2) efforts made to procure such witness or testimony and facts showing reasonable grounds to believe the testimony will be available by the next term, (3) the particular facts affiant believes the witness will testify concerning and that he believes them to be true and knows of no other witness by whom they can be fully proved.

Appellant's affidavit supporting the motion states the name and address of the absent witness; it says that the witness became sick with flu on October 31st, 1948 and is bedfast under his doctor's orders but believes that the witness will soon be available; it sets forth that the witness was with affiant on the date in question, October 23, 1948, and would testify that affiant had not been drinking and was not intoxicated; it states that this testimony is believed to be true and that there is no other witness by whom the facts can be fully established. The affidavit is sufficient under Rule 183(b), R.C.P. The Rule does not require an affidavit by either the witness or his physician, as indicated in the court's entry.

The rule is so well established, as not to require citation of authorities, that only where there is an abuse...