State v. Silvius

Tillinghast, J. The defendant, who is a licensed pharmacist, has been convicted of selling intoxicating liquor upon a week-day to be drunk on his premises, and he now petitions for a new trial on the grounds that the verdict is against the evidence and that he was improperly forced to a trial when he was ill and not ready. (1) The first ground is without merit, as the evidence fully sustains the verdict. The first part of the second ground alleged is that the attorney-general was allowed by the court to try the indictment against the defendant out of its regular order on the calendar ; that is, there being three indictments on the calen *323 dar for the day against the defendant for selling intoxicating liquor to be drunk on the premises, the court, against the defendant’s objection, allowed the attorney-general to proceed with the trial of the third indictment on said' calendar against the defendant. Willard B. Tanner, Attorney-General, for State. John M. Brennan, for defendant. Under the long and well-settled practice in this State, the attorney-general has control of his docket, and after it has been set down for trial and due notice thereof given, he may try the cases in such order as he sees fit. The defendant having been duly notified that all the indictments against him were down for trial on the day in question, he was bound to be ready or to show good cause why he was not, which he failed to do ; and hence this branch of the second ground for new trial cannot be sustained. (2) As to the contention of the defendant that he was ill and unable to proceed with the trial, it appears that while he did produce a physician’s certificate to that effect, it also appears that the court, upon motion of the attorney-general, sent another physician to examine the defendant, who made report that on the morning of the day of the trial he examined the defendant, in company with the physician who had previously given the certificate referred to, and that in the opinion of both of said physicians the defendant had' recovered from the illness set out in said certificate. Upon this report being made to Mr. Justice Wilbur, he allowed the attorney-general to proceed with the trial of the case. In view of these facts we cannot say that the defendant was unfairly or improperly forced to a trial. Petition for new trial denied, and case remanded for sentence.