Opinion
January 2, 1951.
January 8, 1951.
Present: QUA, C.J., LUMMUS, WILKINS, SPALDING, WILLIAMS, JJ.
Practice, Criminal, Continuance, Judicial discretion.
A bill of exceptions not stating that it contained all the material evidence did not disclose abuse of discretion in the denial of the defendant's request for a week's continuance when an indictment for armed robbery and putting one in fear in order to steal from a depository of money was called for trial about two and one half weeks after the arraignment of the defendant and the appearance of his counsel.
INDICTMENT, found and returned on September 14, 1949.
The defendant alleged an exception to the denial of a request for a continuance by Donahue, J., in the Superior Court.
A.P. Farese, ( S. Schneider with him,) for the defendant.
H.R. Mayo, Jr., Assistant District Attorney, for the Commonwealth.
The defendant, who was found guilty on two counts of an indictment charging him (1) with armed robbery from one Katz, and (2) with putting him in fear in order to steal from a depository of money, contends that the action of the court below in denying his motion for a continuance constituted prejudicial error. It appears that the defendant was indicted on September 14, 1949, and was arraigned on September 19, 1949; on the latter date counsel representing him filed an appearance in the case. The case was called for trial on October 7, 1949, and the defendant, who had just been tried on another indictment, requested through counsel a continuance for a week. The reason given by counsel was that he had not been able to look into the case. The request was denied subject to the defendant's exception.
It has often been said that the granting of a continuance rests in the sound discretion of the trial judge. Commonwealth v. Friedman, 256 Mass. 214, 216. Commonwealth v. Millen, 289 Mass. 441, 463. The defendant had the burden of showing that the ruling complained of was erroneous. Commonwealth v. Barker, 311 Mass. 82, 87. We find nothing in the record indicating an abuse of discretion. Moreover, the bill of exceptions nowhere states that it contains all the evidence material to the challenged ruling. Commonwealth v. McIntosh, 259 Mass. 388, 391.
Exceptions overruled.