Appellant challenges the correctness of our conclusion that reversible error is not reflected in the action of the trial court in refusing his application for postponement of trial in order that he might secure counsel to represent him.
If we correctly understand appellant's position, it is that the action of the trial court required appellant to stand trial in a State court for a non-capital felony without the assistance of or being represented by counsel, which is a violation of the due process clause of the Fourteenth Amendment to the Federal Constitution. In other words, appellant contends that, under the holding of the Supreme Court of the United States, it is a violation of due process to try, without counsel, one accused of a non-capital felony in a State court.
Appellant, in support of his contention, cites the cases of Betts v. Brady, 316 U.S. 455, 86 L. Ed. 1595, 62 S. Ct. 1252, and Bute v. Illinois, 92 L. Ed. 735, by the Supreme Court of the United States.
We do not understand these cases to so hold; nor do the more recent cases of Wade v. Mayo, No. 40, (68 S. Ct. 1270) Townsent v. Burke, No. 542, (68 S. Ct. 1252) and Gryger v. Burke, No. 541 (68 S. Ct. 1256) each decided June 14, 1948, so hold.
In those cases, especially Wade v. Mayo, the necessity of appointing counsel in such cases rests upon the facts there present. As said in the Wade v. Mayo case, "Wade was an inexperienced youth incapable of adequately representing himself even in a trial which apparently involved no complicated legal questions." *Page 329
We are unable, therefore, to reach the conclusion that the Supreme Court of the United States has held that due process requires the appointment of counsel in the trial of all non-capital State felonies. The facts incident to each individual case are determinative and may be such as to require the appointment of counsel.
In the instant case, we find nothing that would indicate that appellant was inexperienced and incapable of representing himself. He was a grown man. His cross-examination of the witnesses and the general conduct of the trial indicate his capability of conducting his own trial.
But our decision in this case does not rest upon the proposition of a denial of counsel to appellant, but rather upon the proposition of waiver, by appellant, of his right to representation by counsel. Here, appellant made no request of the trial court that counsel be appointed to represent him; he made no claim that he was too poor to employ counsel or that any contingency existed whereby he could not, himself, provide counsel. His request of the trial court was for a postponement of the trial until he could obtain counsel. It was the trial court's action upon this request in denying the postponement that we held not to be an abuse of the discretion lodged in him.
In addition to the facts set forth in our original opinion, we note that the trial court qualified the bill of exception presenting this matter by saying that "Defendant had known for some time when his case would be tried as shown by his testimony on motion for new trial. When the case was called he did not appear and the court had the Sheriff call Mr. Williams and the court suggested that he contact defendant and get him into court as his bond had been forfeited."
Appellant accepted the bill of exception, as qualified, and is bound by the facts stated in the qualification mentioned.
Accordingly, in appraising appellant's contention, we must accept as true that appellant knew for some time that his case would be tried at the time called. Moreover, the facts show that appellant was not tried for several months after the indictment was returned against him — during all of which time, appellant failed to secure counsel to represent him. While it is true that appellant claims he was led to believe that the case would never be tried, he knew that there was a case pending against him. *Page 330 Ordinary diligence required that he arrange for counsel to represent him, if he wanted such representation.
It is our conclusion that appellant — and he, alone — is responsible for his failure to be represented by counsel upon the trial of the case. It would be a peculiar doctrine, indeed, to say that one charged by indictment with a felony in this State could sit by for months without employing counsel to represent him, and then, upon the day the case is called for trial, secure a further postponement of the trial to enable him to employ counsel, thereby rewarding non-diligence on the part of the accused. Yet, that is the position appellant here occupies.
It has long been the rule that equitable motions for postponement or continuance, such as here presented, are addressed largely to the discretion of the trial court.
Under the facts stated, together with the clear showing of guilt and the infliction of the minimum punishment by the jury, we remain convinced that reversible error is not reflected in overruling the appellant's motion to postpone.
Appellant insists that the members of the jury panel having been sworn to answer questions upon their voir dire examination, in his absence, constituted error because it was a proceeding in the trial of his case in his absence, violative of the provisions of Art. 580, C. C. P.
It appears that the members of the jury panel were sworn to answer questions, generally, as to their qualifications as jurors, and in the absence of the appellant, who was upon bail. Such oath is deemed a preliminary to and not a part of the trial proper. Appellant's case had not, at that time, been called for trial. After the case was called for trial, appellant appears to have been accorded the full opportunity of examining the prospective jurors.
We are unable to agree that the mere swearing of the members of the jury panel, upon their voir dire examination, was a proceeding in the trial of appellant's case, as that term is used in Art. 580, C. C. P.
Believing the case was correctly disposed of originally, the motion for rehearing is overruled.
Opinion approved by the Court. *Page 331
ON APPELLANT'S SECOND MOTION FOR REHEARING.