A petition for rehearing was filed in this case in which counsel for the plaintiff in error alleges that this Court in its opinion "overlooked and has not considered certain points raised by plaintiff in error and has overlooked *Page 330 certain contentions upon authorities cited by him in his brief and argument."
The petition alleges that the errors of this Court consisted in overlooking the fact that the "defendant was arraigned on May 11, 1933, at 4:00 P. M., and his case set for trial on Monday, May 15, 1933, at 9:00 A. M., of said day, and that counsel for the defendant was not appointed for his defense until late in the afternoon of May 12." It is contended that as May 13th was Saturday the first opportunity counsel had in which to ask for a continuance was the following Monday.
The petition alleges that the other error consisted in failing to consider the third assignment of error which rested upon an order at the trial denying the defendant's motion to strike the testimony of the witness, VanGilder.
There is no merit in the petition for rehearing. The opinion states that counsel were appointed on May 12th to defend the accused and that the day before, the court had set the trial for the 15th day of May. The record bears out that statement completely. The record also discloses that the trial was by order set for 9 o'clock A. M. and that at that hour on the day set for the trial counsel submitted the motion for a continuance, which bears out the statement in the opinion that "Counsel waited until the hour set for the beginning of the trial on the 15th day of May and then made the motion."
It is not pointed out why counsel could not have prepared earlier a motion for a postponement of the trial. They were appointed on the 12th day of May. The order setting the trial for the 15th had been made on the 11th of that month. It is not clear why they did not know when appointed that they were unready for trial nor why they could not immediately have stated the fact in writing and lodged *Page 331 that statement with the clerk or made the statement orally in open court to the judge.
But when the motion for a postponement was finally made it was deficient, as pointed out in the opinion, in all the features which the rule and good practice require to be set forth in such a motion. It cannot be stated correctly as a matter of law that two months after a person has committed an offense is not enough time in which to prepare himself against the day of his trial.
The circumstance of his negligence in securing counsel for his defense or his inability to do so is not a matter which convicts the court of illegal or unseemly haste in compelling him to go to trial within thirteen days after the indictment is returned against him in the absence of any affirmative showing to the court that a trial within such time militates against the constitutional or statutory rights of the accused.
A person accused of crime has no natural or inalienable right to a continuance. At common law such application was addressed to the sound discretion of the court and its decision could not be assigned as error, but now in this State such decisions are reviewable by appellate tribunals, but the ruling of the trial court will not be disturbed in the absence of a clear abuse of discretion. See Hall v. State,
As to the testimony of the witness, F. W. VanGilder, a funeral director who testified that he prepared the body of "Bertie Lee" (Clements) for burial and who told of the number of gun shot wounds in the body of the girl; Bertie Lee Clements was the same person described in the opinion as "Bertie Lee." She was shot down at the same *Page 332 time and place when Lacy Bell Dyel was shot, for whose murder the plaintiff in error was tried and convicted. Counsel moved to strike the testimony of VanGilder upon the ground that it was "immaterial and irrelevant." The motion was denied and the ruling was made the basis of the third assignment of error.
The point, however, was not argued in the brief. A very general and indirect reference was made to the point, however, but it could not be considered as an argument. It was stated that the "evidence introduced by the State was so interwoven that the jury was unable to distinguish and separate the testimony showing the assault upon Bertie Lee Clements and that as to the shooting of the deceased."
In the first opinion this Court treated the assignment of error as abandoned, as indeed under the rules of court it was. An examination of the point, however, reveals ample reason for its abandonment as there is no merit in it.
The record discloses that the killing of the two women was the result of one murderous assault upon them. They were both shot down by the defendant in the same transaction and within the time that the defendant could discharge his pistol. A witness to the transaction could not relate the details of the criminal assault without mentioning the names of the two women who in an instant became the victims of the defendant's savage impulse to take their lives. The undertaker, who prepared the body of Bertie Lee for burial, said there were five wounds in her body made by the entrance and exits of the bullets, one bullet remaining in the body. The killing of Bertie Lee was part of the transaction in which Lacy Bell Dyel was killed. As the trial judge said, it was part of the res gestae. It was impossible to omit all reference to Bertie Lee and give a truthful account of the shooting. Both women fell before the *Page 333 continuous explosions of the defendant's pistol. It was a most unfortunate occurrence, but no comfort can be extracted for the defendant from the circumstances of his killing two women instead of one.
There is no merit in the petition for a rehearing and it is therefore denied.
DAVIS, C. J., and TERRELL, J., concur.
WHITFIELD, P. J., and BROWN and BUFORD, J. J., concur in the opinion and judgment.
