State v. Roberts, 15 N.C. App. 237 (1972)

June 28, 1972 · North Carolina Court of Appeals · No. 7223SC326

15 N.C. App. 237

STATE OF NORTH CAROLINA v. LONNIE ROBERTS

No. 7223SC326

(Filed 28 June 1972)

Criminal Law § 91— denial of continuance — illness of defendant’s wife

The trial court did not err in the denial of defendant’s motion for continuance made on the ground that defendant’s wife was going to be admitted to a hospital on the following day, where the trial court had previously informed defense counsel that a doctor’s certificate verifying that defendant’s wife was ill would be required, but no such certificate was presented, and there was no showing that defendant planned to call his wife as a witness or what her testimony would have been.

Appeal by defendant from Crissman, Judge, 6 December 1971 Regular Session, Superior Court, Wilkes County.

Defendant was charged in a valid bill of indictment with feloniously discharging a firearm into an occupied dwelling in violation of G.S. 14-34.1. The case was consolidated, without objection, with two other misdemeanor charges for the purpose of trial, and the jury returned a verdict of guilty as to each of the three offenses. Defendant’s appeal is from the conviction and resulting sentence for the felony.

Attorney General Morgan, by Assistant ■ Attorney General Mitchell, for the State.

Whicker, Vannoy and Moore, by Howard C. Colvard, Jr., for defendant appellant.

MORRIS, Judge.

Defendant’s sole assignment of error is that the trial court abused its discretion in denying his motion for a continuance made at the beginning of trial. State v. Garner, 203 N.C. 361, 166 S.E. 180 (1932); State v. Gibson, 229 N.C. 497, 50 S.E. 2d 520 (1948). On 8 December 1971, the trial court informed defendant’s attorney that before ruling on any motion for a continuance, he would require a doctor’s certificate verifying that defendant’s wife was ill. On 9 December 1971, the case was called for trial but before any evidence was presented, defendant moved for a continuance. Defendant’s attorney admitted that he did not have the required doctor’s certificate. Defendant’s attorney did go on to say, however, that he did have a card which was an application to admit the defendant’s wife to the hospital on the following day, 10 December 1971. In his discretion, the trial court denied defendant’s motion for a continuance, and an exception was duly noted.

The record of the case on appeal contains no showing that defendant planned to call his wife as a witness or if he did, what her testimony would have been.

“Whether a defendant bases his appeal upon an abuse of judicial discretion, or a denial of his constitutional rights, to entitle him to a new trial because his motion to continue was not allowed, he must show both error and prejudice. (Citation omitted.)” State v. Moses, 272 N.C. 509, 512, 158 S.E. 2d 617 (1968).

We find neither error nor prejudice in this case.

No error.

Judges Vaughn and Graham concur.