APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
DOWNING, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
The defendant, Fred Gore, was charged by indictment with the murder of Thurman Williams and with aggravated battery upon Earl Hollins. He entered a plea of not guilty, and after a trial before a jury was found guilty of both offenses. He was sentenced to the penitentiary for a term of not less than twenty-five nor more than forty years for murder and for a term of not less than four nor more than ten years for aggravated battery, the sentences to run concurrently. He appealed directly to the Supreme Court and by transfer of that court the appeal was assigned here.
It is strenuously urged by the defendant that the trial court erred in overruling his motion for a continuance. This contention necessarily requires a recital of the chronological events leading up to trial.
The indictment was returned on November 14, 1969. Three days later, Patrick T. Murphy filed his appearance as private counsel for the defendant. After arraignment on November 21, 1969, the cause was assigned to Judge Philip Romiti for trial and then reassigned to Judge Robert J. Collins after a motion for change of venue presented by Mr. Murphy was granted. On the same day Mr. Murphy filed a lengthy four page motion for discovery with a six page supporting memoranda. At the same time he also filed a written motion to place the defendant on bond. On November 25, 1969, the Court allowed the defendant's discovery motion in part, but on motion of the State the hearing on the question of bond was continued. Evidence was heard on the motion to set bail on December 3 and December 8, and on the latter date the motion was denied. When the Court inquired of Mr. Murphy what date would be convenient for trial he replied, "today" and stated that he was then ready to select a jury. The trial judge informed the parties that he could not hear the matter on that day since he then had another case on trial. The prosecutor suggested January 12, 1970, and the cause was continued to that date on the motion of the State. On January 5, 1970, Mr. Murphy filed a motion for a change of venue which was granted, and the case was reassigned to Judge Robert J. Downing for trial.
Judge Downing suggested February 2, 1970, as the trial date. Mr. Murphy asked for an earlier date and pursuant to his request the cause was set for trial on January 26 with subpoenas. On the latter date, Mr. Murphy sought a continuance to February 4th, because he said he had been unable to ascertain whether Clarence Conn, Earl Hollins and Thomas Barber, the principal witnesses for the State, lived at the addresses given on the list of witnesses and because he desired to interview these three prior to trial. The prosecutor opposed the motion and pointed out that after extensive cross-examination of Hollins and Barber at the bond hearing, Murphy had answered ready for trial on December 8, 1969. The prosecutor further stated that Conn, who was residing in witness quarters of the State's Attorney's office, would be made available at the convenience of the defense. The Court, after considering the argument of counsel announced that the case would be continued until January 29th. Murphy then informed the Court that another attorney wished to enter the case.
At this point, R. Eugene Pincham asked leave of court to file his appearance as co-counsel instanter. The Court commented that the defendant was entitled to have counsel of his own choice, but stated that the case had been set for trial on that date by agreement of the parties.
Mr. Pincham suggested that the matter be continued to February 16th so that he could confer with the defendant and interview witnesses. The Court rejected this request and continued the case to January 29th with subpoenas. Leave was given to Mr. Pincham to file an appearance, and the prosecutor was directed to make available to counsel any witnesses in witness quarters. Pincham refused to file an appearance since his motion for continuance was denied, and he stated that the Court by setting the case on January 29, 1970, was depriving the defendant of his constitutional right to counsel of his own choice.
On January 29, 1970, Mr. Murphy presented a written motion for a continuance and Mr. Pincham joined in that request. After hearing extensive argument of counsel and reviewing the transcript of the prior proceedings, the Court set the cause for trial on February 2nd and denied the motion for a longer continuance. On the latter date, Mr. Murphy answered not ready for trial and renewed his motion for a continuance. The defendant addressed the Court and personally joined in the request. The motion was denied and the cause proceeded to trial.
The defendant contends that the trial court's denial of his motion for a continuance deprived him of a fair trial because his privately retained counsel did not have an adequate opportunity to prepare for trial. A written motion for continuance was filed on January 29, 1970. Defendant's attorney, Patrick Murphy, in an affidavit submitted in support of the motion indicated with reference to his lack of preparation that he had been engaged in other matters on January 27th and 28th and that he had not yet received back the transcript of the bond hearing which had been filed in the Supreme Court. Paragraph 6 of the affidavit stated, "That on 26 January, 1970 the defendant for the first time moved for a continuance to allow the affiant to interview the State's witnesses and two additional alleged eye-witnesses who purportedly agree with the defendant's version of the case."
It is argued that the addresses given on the witness list for Clarence Conn, Earl Hollins, and Thomas Barber, were inaccurate and that as of January 26, 1970, defense counsel had been unable to contact these three. The witness list was delivered to the defendant over a month prior to trial. The record reveals that both Earl Hollins and Thomas Barber were cross-examined extensively at the previous bond hearing. On January 26th the Assistant State's Attorney indicated that Clarence Conn was residing in witness quarters and that Conn would be made available at a time convenient to the defense. Prior to trial, Mr. Murphy contacted Earl Hollins and Clarence Conn, but the two men refused to talk to him. The record shows that Mr. Murphy had sufficient opportunity to contact, interview, or question these witnesses.
• 1 The statement in the affidavit with reference to the "two additional eye-witnesses who purportedly agree with the defendant's version of the case" is very general. The names, addresses, or whereabouts of these individuals are not included and little is said concerning testimony which they would purportedly give if called as witnesses. A full week elapsed between January 26th and the commencement of trial, and there is no showing in the record that this was not sufficient time to contact and interview these persons. An accused in a criminal proceeding may obtain a continuance to bring into court a material witness who is unavailable where there is a reasonable probability that the individual can be found, Section 114-4(b)(3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1969, ch. 38, par. 114-4(b)(3)); however, a general allegation that witnesses may be discovered does not necessarily warrant the granting of a continuance. See: People v. House, 73 Ill. App.2d 345, 219 N.E.2d 580.
The defense counsel as the affidavit points out was engaged in other matters on January 27th and 28th, but he had no conflicting responsibilities when the trial began five days thereafter. The transcript of the bond hearing was available for trial and was used for the purposes of impeachment.
• 2-5 The standard which must be applied in determining whether a trial court erred in denying a motion for continuance to enable an accused's counsel to prepare for trial was set forth in People v. Storer, 329 Ill. 536, at 539-40, 161 N.E. 76 at 78:
"A defendant in every criminal case is entitled, under the law, to a reasonable time and full opportunity to prepare for his trial, and that right is one guaranteed to him by the Constitution. What is a reasonable time for the preparation of a case, and what time should be granted counsel for that purpose must necessarily depend upon the facts and circumstances of each case and is a matter largely resting in the sound discretion of the trial ...