Jimmie Doyle Bear, Appellant, v. United States of America, Appellee, 384 F.2d 132 (10th Cir. 1967)

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U.S. Court of Appeals for the Tenth Circuit - 384 F.2d 132 (10th Cir. 1967) October 26, 1967

Joe Cannon, Bethany, Okl., for appellant.

John E. Green, Asst. U. S. Atty., Oklahoma City, Okl. (B. Andrew Potter, U. S. Atty., Oklahoma City, Okl., with him on the brief), for appellee.

Before PICKETT, HILL and HICKEY, Circuit Judges.


Bear appeals from a conviction and sentence for bank robbery in violation of 18 U.S.C. § 2113(a) (d). The only assignment of error is that the court erred in not granting a motion for continuance because of the absence of Bear's brother John, alleged to be a material and necessary witness for the defense.

At the hearing on the motion, numerous witnesses were called and it was established that until a short time before the trial, the brother had assisted counsel for the accused in preparing a defense, and then disappeared. The hearing developed little, if any, material evidence concerning the nature of the brother's testimony if available as a witness.

A motion for continuance is addressed to the discretion of the trial court, whose action is not subject to review unless the discretion is abused. Avery v. Alabama, 308 U.S. 444, 450, 60 S. Ct. 321, 84 L. Ed. 377; Franklin v. State of South Carolina, 218 U.S. 161, 168, 30 S. Ct. 640, 54 L. Ed. 981; Leino v. United States, 10 Cir., 338 F.2d 154; Brooks v. United States, 10 Cir., 330 F.2d 757, cert. denied 379 U.S. 852, 85 S. Ct. 100, 13 L. Ed. 2d 56; Wood v. United States, 10 Cir., 317 F.2d 736; Smith v. United States, 10 Cir., 273 F.2d 462, cert. denied 363 U.S. 846, 80 S. Ct. 1619, 4 L. Ed. 2d 1729. We find no abuse of discretion.