Holloway v. State , 37 Okla. Crim. 24 ( 1927 )

I cannot concur in the view of the majority of the court upon the interpretation placed upon that part of section 583 of the Compiled Statutes of Oklahoma 1921 material to this case, relating to motions for continuance, which is as follows:

"Provided, that if the party or his attorney of record is serving as a member of the Legislature or the Senate, sitting as a court of impeachment, or within ten days after an adjournment of a session of the Legislature, such facts shall constitute cause for continuance, the refusal to grant which shall constitute error, and entitle such party to a new trial as a matter of right."

Prior to the adoption of that part of section 583 hereinabove set out a motion for continuance was addressed to the sound discretion of the trial court. Under the provisions of this statute the only thing that is necessary to be shown by the defendant is that his attorney is a member of the Legislature or of the Senate sitting as a court of impeachment, and that the Legislature is in session at the time the motion for continuance is filed.

The majority of the court bases its opinion on the fact that Senator Goodall was not hired as an attorney for the defendant until the Legislature had convened. The question to be determined is, Did the defendant bring himself within the language of the statute? If he did, his motion should have been sustained.

My interpretation of the statute is that, if an attorney has been employed by the defendant, who is a member of the Legislature or Senate sitting as a court of impeachment, even though the employment was only a short while previous to the time of filing the motion, and after the convening of the Legislature, the defendant is entitled to a continuance as a matter of right.

The question to be determined is, What was the intent of the Legislature at the time it passed the statute in question? If it intended, in writing the statute as it did, that, when a motion for continuance was filed, showing the facts stated in the defendant's motion, the defendant was entitled to a continuance as a matter of right, then the motion of the defendant in this case should have been sustained and a continuance granted.

I can readily see where the provision of the statute may be abused in cases pending in the courts by the defendant hiring members of the Legislature, and thereby causing cases to be continued, but, on the other hand, I can readily see the benefit of the statute to attorneys and litigants throughout the state. No statute can be written that may not be abused; yet, when it is written in language plain and unambiguous, and as easy to understand as that part of the section involved, I am constrained to hold and construe the section as being mandatory, and I hold it is immaterial as to when the attorney was employed by the defendant, if he is the attorney of the defendant when the motion is filed. Based upon the allegations set forth in the motion for continuance, it is the duty of the court as a matter of right to grant a continuance. If the statute is too broad, then it is the duty of the Legislature to correct it.

The trial court erred in overruling the motion of the defendant for continuance on the ground stated in the motion, and the defendant is entitled to a reversal of this case as a matter of right.