Four assignments of error are discussed in the brief of appellant. These assignments relate (a) to the refusal of the trial judge to continue the case; (b) to the refusal to submit the special instructions requested by the defendant.
The accepted and long prevailing rule governing the law of continuance has been recently stated in S. v. Garner, 203 N. C., 361, 166 S. E., 180, as follows: “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 can*816not lawfully be taken from them, and tbis includes tbe right of a fail-opportunity to face Tbe accusers and witnesses witb other testimony/ . . . But the record is barren of any affidavits, or evidence tending to show a denial of this right. ... 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.”
While the judicial machinery moved rapidly in this case, it cannot be said as a matter of law, that the mere fact that a defendant is indicted for a capital felony on Tuesday and placed on trial on the following day, is in itself such unseemly haste as to work a denial of constitutional rights.
The special instructions prayed by the defendant were taken from S. v. Powell, 168 N. C., 139, 83 S. E., 310; S. v. Goode, 132 N. C., 982, 43 S. E., 502. These instructions are correct as abstract propositions of law. However, the evidence for the State discloses that the defendant was “hunting with the pack.” Moreover, the testimony for the State tended to show that the three defendants on trial actively engaged and participated in the assault upon the deceased or the “scuffle” which terminated in the death of Rinehart. Consequently, they were acting in unison.
Instructions of a similar nature were requested by the defendant and denied in S. v. Rideout, 189 N. C., 156, 126 S. E., 500. In discussing the applicability of the principles of law involved, the Court said: “If the jury found from the evidence, as their verdict indicates they did, that one of the defendants shot Alex Hedgepeth and thereby killed him with a gun and shells which both defendants had carried to the whiskey still with a common purpose, then it was for the jury to determine whether this act was so related to the unlawful act which the defendants had conspired to do' as that the conspirator who did not fire the shot was equally as guilty as his conspirator who did fire the-shot.” The Court further quoting from S. v. Finley, 118 N. C., 1161,, 24 S. E., 495, said: “The prayer in the abstract embraces a sound doctrine of law; but where a conspiracy or an agreement between two. or more to do an unlawful act has been proved, and as a result and consequence therefrom a crime is committed, the rule is different, and it is altogether an immaterial matter which one of the actors actually commits the deed; they are all principals and all guilty of the offense.” Furthermore, the original record in the Rideout case discloses that there was no allegation of conspiracy in the bill of indictment, but the same laid a charge of murder in the second degree against both defendants.
No error.
ScheNCK, J., took no part in the consideration or decision of this case.