¶1Dissenting Opinion
¶2I am unable to agree with the majority opinion herein and dissent thereto.
¶3I am of the opinion the court abused its discretion in denying the appellant a continuance of his case on counsel’s oral motion therefor. The affidavits of the defense lawyers appear in the majority opinion and hence need not be repeated here. The only question raised by the majority opinion with reference thereto is that originally the motion for continuance was oral and the written affidavits were filed later.
¶4In that regard I would point out that counsel who requested . orally the continuance and his partner, whose signatures are appended to the above affidavits, are officers of the court, as are the Judge and the Prosecuting Attorney. There is nothing *471in any of the record that denies or contradicts the statement contained in the affidavits.
¶5It seems to me that the following argument presented by the State as appellee in Webb v. State (1970), 254 Ind. 341, 259 N. E. 2d 651, fits exactly the situation at bar. The argument reads as follows:
“After careful review of defendant’s Brief and the Transcript the State finds no conflict with defendant’s statements of the issues, facts and law on this appeal.
The defendant in this appeal has been charged with a felony and has been found guilty. If such verdict is upheld without further consideration, the defendant will have been punished, without fault on his part, because he was not given an opportunity to present his best defense as a result of the absence of his attorney.
A review of the authorities shows that the trial court indisputably erred in this cause. This Court has ruled with consistency that a defendant should have an opportunity to present his evidence and be represented by competent counsel. This would require more than a perfunctory representation. Wilson v. State (1943), 222 Ind. 63, 51 N. E. 2d 848. The Wilson case also supports the proposition that even though the defendant had counsel present, if this counsel had not assumed the responsibility of preparation for the trial of the case, and such preparation had been handled by another counsel who wasn’t present at the trial, then the defendant was actually in court without effective counsel. This supports the contention that a defendant is entitled to actual representation and not that which is perfunctory in nature. Wright v. State (1969), 252 Ind. 418, 249 N. E. 2d 33.
Another case, Lloyd v. State (1960), 241 Ind. 192, 170 N. E. 2d 904, in review of the cases on this subject in Indiana, supports the principle upheld by both this Court and the Supreme Court of the United States that defendant has a constitutional right not only to have counsel representation during his trial, but also, prior thereto, in order that such counsel may be prepared for a ‘zealous and active defense.’
In this case, the counsel in court with the defendant, through no fault of his o-wn, was not prepared and was not expected to be prepared to try this case. Although this counsel was physically present during the proceedings, he could not contribute to the defense of the defendant because *472of his lack of knowledge of the case. Defendant was denied the presence of an informed counsel which he had provided for through his own resources. Through no fault of his own, he was forced to trial with local counsel who had not prepared or investigated the case and who was not in a position to properly represent the defendant’s best interests.”
The appellee there came to the following conclusion:
“For the foregoing reasons and in the interest of justice in accordance with the established laws of this state, the State respectifully recommends that this Court reverse the trial court’s decision and order a new trial.”
¶6I am in thorough agreement therewith and submit the same result should, obtain here.
¶7The second point on which I dissent is that the admission of the testimony concerning the assault by appellant upon one Forrester two weeks prior to the assault and battery charged in the case at bar, over the objection of the appellant, constituted reversible error. Meeks v. State (1968), 249 Ind. 659, 234 N. E. 2d 629.
¶8The cause should be reversed and remanded with instructions to grant appellant’s motion for a new trial.
¶9DeBruler, J., concurs.
¶10Note. — Reported in 260 N. E. 2d 782.