State v. Garner, 203 N.C. 361 (1932)

Oct. 19, 1932 · Supreme Court of North Carolina

203 N.C. 361

STATE v. JOE GARNER, HERBERT GARNER, et al.

(Filed 19 October, 1932.)

1. Criminal Law H a — Continuance should he granted where it is necessary to afford defendant fair opportunity to confront witnesses.

While a motion for a continuance is addressed to the sound discretion of the trial court such motion should be granted where it is necessary for the preservation of the defendant’s constitutional right to a fair opportunity to confront his accusers and witnesses with other testimony, but where on appeal from the court’s order refusing defendant’s motion for a continuance, it is not made to appear that this right had been denied the exception to the court’s refusal to grant a continuance will not be sustained.

2. Criminal Law L e — Burden is on appellant to show error.

The burden is on appellant to clearly show that error has been committed, as the presumption is against him.

Appeal by defendants from Sinclair, J., at February Term, 1932, of DupliN.

Criminal prosecution tried upon an indictment charging the defendants, Joe Garner and Herbert Garner, and two others, with robbing the Bank of Magnolia of $14,000 on 12 January, 1932, and cognate offenses, set out in a five-count bill.

The defendants were arrested on Tuesday, 2 February, the bill was returned the next day and the trial was had on Friday of the same week. The defendants asked for a continuance, or time within which to prepare their defense. Motion overruled; exception.

From convictions and judgments thereon, the defendants appeal, assigning errors.

Attorney-General Brum/mitt and Assistant Attorney-General Seawell for the State.

B. D. Johnson and J. J. Gresham,, Jr., for defendants.

Stacy, C. J.

The only exception, which needs to be specifically noticed, is the one addressed to the refusal of the court to grant the defendants’ motion for a continuance. While, ordinarily, this is a matter resting in the sound discretion of the trial court, nevertheless, it should be remembered that defendants have a constitutional right of confrontation, which cannot lawfully be taken from them, and this includes the right of a fair opportunity to face “the accusers and witnesses with other testimony.” Section 11, Bill of Eights; S. v. Lea, ante, 13; S. v. Ross, 193 N. C., 25, 136 S. E., 193. But the record is barren of any affidavits, or evidence tending to show a denial of this right. S. v. Rhodes, 202 N. C., 101, 161 S. E., 722; S. v. Sauls, 190 N. C., 810, 130 S. E., 848; S. v. Riley, 188 N. C., 72, 123 S. E., 303. In the absence of a clear showing, the exception must be overruled. The burden is on appellants to show error, and they must make it appear clearly, as the presumption is against them. Baker v. Clayton, 202 N. C., 741; Poindexter v. R. R., 201 N. C., 833, 160 S. E., 767.

No error.