Stirling v. State

• Decision Date: 06 April 1931
• Docket Number: Criminal 743
• Citation: 297 P. 871,38 Ariz. 120
• Parties: ALAN A. STIRLING, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

297 P. 871

38 Ariz. 120

ALAN A. STIRLING, Appellant, v. STATE, Respondent

Criminal No. 743

Supreme Court of Arizona

April 6, 1931

APPEAL from a judgment of the Superior Court of the County of Yuma. Fred L. Ingraham, Judge. Judgment affirmed.

Mr James Forest, for Appellant.

Mr. K Berry Peterson, Attorney General, Mr. James R. McDougall Assistant Attorney General, and Mr. Glenn Copple, County Attorney, for the State.

OPINION

McALISTER, C. J.

Alan A Stirling was convicted and given a term in the state prison for bigamy and his motion for a new trial being overruled he brought the case here for review.

The information was filed July 18th, 1930, and twelve days later he was arraigned thereon, counsel of his own selection appearing for him at that time. He entered a plea of not guilty and the case was set for trial for Monday, September 15th, 1930, but three days prior thereto, that is, on Friday, September 12th, his counsel, Mr. Timmons, requested that he be permitted to withdraw from the case. This request was granted and the court appointed Mr. James Forest to represent him.

When the case was called for trial at 9:30 A.M., September 15th, the defendant by his attorney moved for a continuance upon the ground that the latter had not had sufficient time to prepare for trial. It was stated in the motion that a proper defense required that certain records and instruments be secured from Seattle, Washington, and that this could not have been done in the short period in which counsel had represented him. The motion was not supported by the verified statement of anyone and was denied by the court, the case thereupon proceeding to trial and resulting in a verdict of guilty.

The only assignment is that the court erred in denying appellant's motion for a continuance in order that his counsel might have sufficient time to prepare the case for trial and in overruling his motion for a new trial made upon the same ground. His position is that his counsel withdrew without notice to him or fault on his part and that the attorney appointed to represent him was entitled to more than the time intervening between Friday and the following Monday morning in which to prepare for trial in a serious felony charge which it took two days to try.

Motions for a continuance are addressed to the sound discretion of the trial court and it is only where the facts show an abuse of this discretion that appellant courts are justified in interfering. Quayle v. State, 19 Ariz. 91, 165 P. 331; People v. Collins, 195 Cal. 325, 233 P. 97. The question presented, therefore, is whether the court in denying the motion under the circumstances abused its discretion.

From Friday until Monday was not, it is true, a very long time in which to prepare for the trial of one accused of a felony carrying such a heavy penalty as does bigamy, but up to that time appellant had been represented by counsel of his own selection and it nowhere appears in the record whose fault it was that he asked to be permitted to withdraw from the case. If it were appellant's he would have no ground for complaint, for clearly he could not discharge his counsel, or act in such a way as to cause him to withdraw so close to the day of trial, and then be permitted to say that the court abused its discretion in forcing him to a hearing represented by counsel who had not had sufficient time to prepare. But he doubtless would have had just cause for complaint if his counsel had suddenly and without notice or fault on his part withdrawn and he had been required to go to trial within three days thereafter with counsel unfamiliar with the facts of his case provided the nature of his defense was such that the time was not sufficient for the latter to prepare for trial. "His right to have counsel, and to have his coun...