Dissenting Opinion.
McEnery, J.The defendant was indicted ou February 18, 1889. On the 23d February, the court appointed Charles J. Tlieard to defend the accused. The accused had made an application for the appointment *1059of an attorney. Mr. Tlieartl declined the appointment. The accused was then on the 23d February arraigned, and remanded to await farther proceedings. On the 27th February an able and experienced lawyer iu criminal trials was appointed by the court to represent the accused. He declined the services of the attorney without assigning any reasons therefor.
On the 27th February the following appears upon the minutes of the court:
“ The court having appointed Charles J. Tlieard, Esq., as counsel to represent the accused and the appointment having been declined the court has this day appointed H. C. Castellanos,. Esq., to represent the said accused. The appointment being accepted in person by the appointed.”
On the 18th day of April the defendant -was ordered to appear for trial on the 29th day of April. On the 20th of April this notice was served on the defendant.
On the 29th of April the accused again made application to the court for the appointment of counsel, and the court appointed James. II. Dow-ling, Esq. The case was continued on his motion until Wednesday, May 1st 1889.
On May the first, the attorney, James H. Dowling, filed a motion for a continuance. The cause assigned in the affidavit and motion for a continuance is as follows : “ That he is entitled to an indulgence from this Honorable Court of a reasonable time in 'which to prepare a suitable and valid defence, which counsel believes there is in this case, that ho has not had sufficient time to do so,, or less than forty-eight hours have intervened since his assignment as counsel and the calling of the accused to the bar of the court for trial, that he has been altogether unable to prepare the case, involving as it does the life of a human being embracing points of law and fact requiring much study and research, which he has been unable to devote to it.”
This motion was addressed to the sound discretion of the court, which should not be interfered with, unless there lias been an improper and unjust abuse of such discretion in his rulings. Wharton Criminal Law 3037 ; 33 Ann. 262 ; 36 Ann. 853 ; 37 Ann. 128 ; 39 Ann. 673.
The learned District Judge in giving his reasons for denying the continuance says:
“ On the 23d February, 1889, Etienne Deschamps was brought into court and was arraigned and pleaded not guilty. On the same day at his request and upon his affidavit of want of means to employ counsel the court appointed a member of the bar in every rvay competent, and *1060lie, under date 26tli February, 1889, informed tlie court that lie declined the appointment. Therefore, I, the judge, put myself into communication successively with quite a number of tlie members of the bar, all of whom declined to accept- the appointment.
“ In the meantime I was informed, and it ivas generally understood, that the accused was in communication with a distinguished member of the bar who would probably be employed by the accused. On the 18th April the gentleman stated to the District Attorney, who immediately informed mo, that he would not undertake the case. Therefore on the same day I ordered that a copy of the indictment and of the jury list and notice that the trial was fixed for Monday, tlie 29th of April. I obtained the consent of one of the oldest members of the bar, a lawyer of large exiierience and of great ability in criminal cases, to undertake the defence, and notice of trial issued on the 20th April was served on him the 22d April. The accused refused to accept tlie services of this gentleman and thereupon I had the accused brought into court, the gentleman who had consented to defend him being also present in the court room. The accused there in open court refused to accept the services of this gentleman and requested the court to appoint another selected by.himself, whoso name lie gave. This gentleman, a prominent member of the bar, was sent for and he asked for time to visit the accused and determine whether or not he would accept the appointment. On the 23d April he declined to take the case, and Wednesday, 24th April, I sent tlie chief deputy sheriff to tell the accused if he would furnish the names of witnesses I would see that they were brought into court on the trial. The answer returned to me was that he had no witnesses and it- was reported in court on the day of trial that lie had no witnesses.
“ On the 29th April when the accused was brought to the bar for trial, he informed the court that he had no counsel and asked the court to appoint counsel for him, such as tlie court might select. After positive refusal by some half dozen members of the bar, the appointment was made and the case continued to 1st May. The time I allowed I considered sufficient to enable the counsel to ascertain what defence, if any, there was and to obtain from the accused the names of witnesses by whom any exculpating facts or matters of defence could be proved; and such information might have been grounds for continuance.
“ The counsel for accused in answer to inquiry by the court said he would require about a month to prepare suitable defence. As the court will be in vacation from 1st June to 1st September, this simply meant a continuance for four months.
*1061“ Tlie accused never in any way indicated to tlie court that he had any defence. He never mentioned any fact which he expected or desired to prove, nor did he ever ask for delay to procure testimony or to have witnesses in his behalf summoned. I consider the affidavit insufficient in that it does not indicate any line' of defence. It does not mention any fact to be proven, nor does it ask for delay to have witnesses summoned in behalf of the accused. On such showing I did not consider that I would be justified in granting a continuance.”
As a general rule error does not lie to the action of the court on a motion for a continuance, which is in the discretion of the court, though when a bill of exception is taken, the decision in a sorong case may be reviewed. Wharton Criminal Law § 3037.
This court has guarded this discretion in such matters, and its expressions on the subject have been emphatic. Thus, in one case we said.- “ The legal discretion of the trial judge in a criminal case, in matters of continuance will not be interfered with, unless the ruling complained of is glaringly erroneous and manifestly unjust.” State vs. Johnson, 36 Ann. 853.
In the case of State vs. Clark, 37 Ann. 128, we said: “ Continuances are peculiarly within the legal discretion of the trial judge in criminal cases. Refusals to grant them will not be interfered with, unless in cases of flagrant error or gross abuse of power.” State vs. Clark, 37 Ann. 128.
In a case similar to the one at bar the facts are stated in the opinion as follows:
“An attorney was appointed on the 14th to defend him and the case was fixed for the 16th following. On that day a motion was filed for a continuance on the grounds stated, viz.: that the counsel appointed by the court had not sufficient time to prepare his defence, supported by affidavit, but it was overruled. It stated no special cause for delay. The attorney does not appear to have been shocked at the ruling. He did not resign his trust, but proceeded with the trial of the case and gave the accused his able and generous assistance. After a verdict of guilty a motion was made for a new trial, but no attempt appears to have been made to show that by the refusal of the judge to continue the case the prisoner had sustained any injury, and that the judge should have granted the postponement of the case. The motion charged besides that the verdict was contrary to law and evidence.”
This case is similar in every respect to the instant case, the only difference being in those features of the latter which are less favorable to the defendant.
*1062Iii this case we said: “It is left to the sound discretion of a district judge iu such cases to determine what time should be allowed counsel appointed by him to represent the accused in order to prepare Ms defence, 16 Ann. 125. And also to pass upon application for a continuance on the day of trial, 23 Ann. 569, as well as upon motion for a new trial. 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 district judge acted arbitrarily, and was guilty of a denial of justice, his rulings in two instances, the one offering the other at difterent stages, particularly when the last was made on a motion after a verdict, will not be reversed on appeal.” State vs. Wilson, 33 Ann. 262.
In the case of the State vs. Berry Johnson, 36 Ann., p. 853, “ it appears where he (accused) was arraigned, one week previous to his trial the court offered to assign counsel for his defense. The offer was declined for the reason that ho had secured counsel of his own. On the day of trial he informed the court that his counsel had abandoned him, and he therefore prayed for a continuance on that ground. Whereupon the court having assigned him counsel who now represents him, refused the continuance, but allowed two hours’ delay to the attorney thus appointed. ”
In this casé the court said: “Our jurisprudence has iinaly settled the rule that this court will not interfere with the legal discretion of the trial judge unless gross injustice has been done to the accused. The defendant chose to rely on liis own selection of counsel and other than to accept the guidance of the court, and he must abide the consequences. ”
In the instant case the accused had ample time to prepare for his defense; to consult with counsel and communicate to him his defense, had he accepted the services of the able and experienced attorney appointed to represent him by the court. No reason is assigned for declining the services of this attorney. While the Constitution of the State guarantees to every accused party the right to be heard by counsel, and in furtherance of the provision the statute law directs the judge to appoint counsel learned in the law to represent him when he is unable to employ one, there is no law absolutely requiring him to be heard by counsel. It is his privilege to go to trial without an attorney, and to decline to accept the services of counsel tendered him, and he must abide the consequences of such refusal. The District Judge, it seems, in this case exhausted all the resources ho possessed in the interests of the accused. Nothing else, in the administration of justice and a sense of duty to society and the State could have been done.
*1063After having declined the services of counsel appointed by the court, he was notified of the day fixed for his trial, and was requested by the judge to furnish the names of witnesses'whom he desired to have summoned on his behalf. He replied he had none. On the 29th of April an attorney was appointed by the court at the request of the accused, and on his motion the case was continued until the 1st of May, when he asked for a further continuance for the reasons alleged in the motion. In this motion it is not even suggested that the accused had any defense, or that he had any witnesses to summon. The only reason is that the attorney desired time to prepare a defence for his client. On the trial, after the State had concluded her evidence, the accused retired with his attorney for consultation, and announced on the return to the courtroom that the accused had no testimony to offer.
That this is a capital case can make no difference in the rulings of the court to distinguish it from cases of a lower grade in the list of crimes. There is no law requiring the trial judge to view with more favor application for continuance in capital cases than those made for offenses punishable at hard labor.
Under the facts in this case the action of the trial judge in refusing a continuance does not seem to have been “glaringly erroneous; manifestly unjust;” “a flagrant error or gross abuse of powers.” "On the contrary, the district judge was anxious and solicitous in the defense of the accused, and was zealous in his efforts to secure for him the services of learned and experienced counsel.
For these reasons, I respectfully dissent from the opinion of the majority of the court.
Fenner, J., concurs in this opinion.