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Everett v. State

Supreme Court of Arizona

November 2, 1960

Joseph Dewitt EVERETT, Appellant,
v.
STATE of Arizona, Appellee.

Page 395

[88 Ariz. 294] Newell & Johnson, and Paul F. Newell, Tucson, for appellant.

Wade Church, Atty. Gen., and Burton M. Bentley, Special Asst. Atty. Gen., for appellee.

BERNSTEIN, Justice.

Defendant appeals from a judgment, entered on a jury verdict, convicting him of the crime of assault with a deadly weapon. Defendant asserts that the trial court erred in granting the State's motion for a continuance and in refusing to instruct the jury with respect to his claim of self-defense.

This proceeding was initiated by a criminal complaint sworn to on July 31, 1959. Defendant waived preliminary hearing before a justice of the peace and an information was thereafter filed by the County Attorney of Pima County on August 20, 1959. On August 25th defendant pleaded not guilty at an arraignment before the Superior Court, which set the trial date for October 6th. On October 2, 1959 the State moved to continue the trial on the ground that Loise Walker, the victim of the alleged assault by defendant, was outside the State of Arizona. On the return of the motion on October 5th, the court permitted the State to refile its motion and adjourned the the argument until later that day. Defendant's attorney did not appear at the time set and the court, granting the State's motion, adjourned the trial until October 19th. Defendant thereafter moved unsuccessfully to set aside the continuance, and the trial was held on October 19th and 20th.

Defendant argues that the continuance deprived him of his right to a speedy trial and was granted in violation of the Rules of Criminal Procedure. Article II, Section 24 of the Arizona Constitution, A.R.S. guarantees to an accused the right to a 'speedy public trial'. Rule 236 of the Rules of Criminal Procedure, 17 A.R.S. provides for dismissal of a prosecution where the accused is not 'brought to trial' within sixty days after the information has been filed.

In the instant case the trial commenced on the sixtieth day following the [88 Ariz. 295] filing of the information and, accordingly, the prosecution was not subject to dismissal under Rule 236. This does not of itself bar defendant's claim, for, as stated in State v. Hoffman, 78 Ariz. 319, 325, 279 P.2d 898, 902:

'Whether a speedy trial has been denied will vary with the facts of the case.'

Here, defendant has not demonstrated any prejudice as a result of the trial court's granting the continuance. No objection appears to have been made to the original trial date of October 6th, and the thirteen day adjournment, still within the sixty day period provided in Rule 236, did not deprive defendant of his right to a speedy trial.

As stated in Hunter v. State, 43 Ariz. 269, 271, 30 P.2d 499:

'Continuances are, to a great extent, discretionary with the trial court, and an appellate tribunal will not review its action in this respect unless it clearly appears that the discretion has been abused. Shaffer v. Territory, 14 Ariz.

Page 396

329, 127 P. 746; 6 R.C.L., p. 545, and cases cited. Courts are much more reluctant to hold that the granting of a continuance was error than that the refusal to do so was, for a refusal to grant a continuance may frequently work a serious injustice to one party or the other, while the granting of it will do so only in rare cases.'

See also Rule 241 of the Rules of Criminal Procedure.

Defendant also claims that the State's application for a continuance, made on the ground that a witness was absent, did not meet the requirements of Rule 244 of the Rules of Criminal Procedure. We have examined the record and consider this objection to be without merit. See State v. Hoffman, supra; Hunter v. State, supra. The State's refiled motion, in particular, complied in detail with Rule 244.

Nor does the record show that the defendant did 'admit that the witness if present would testify to the facts set forth in the application,' so as to afford a basis for denial of the State's application under Rule 246. As a matter of fact, the attendance of the witness, who was the person allegedly assaulted by defendant, was secured in accordance with the provisions of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings (A.R.S. §§ 13-1861 to 13-1866), and his testimony at the trial proved to be in substantial conflict with that given by defendant.

We hold that the trial court did not err in granting the State's motion for a continuance.

Defendant also assigns as error the trial court's failure to instruct the jury on the [88 Ariz. 296] law of self-defense. Both the State and the defendant submitted proposed instructions on that issue, which the trial court refused on the ground that there was not sufficient evidence to ...


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