State v. Rising, 223 N.C. 747 (1943)

Dec. 16, 1943 · Supreme Court of North Carolina
223 N.C. 747


(Filed 16 December, 1943.)

1. Trial § 4: Criminal Daw § 44: Appeal and Error § 37b—

Tbe general rule is tbat tbe allowance of a motion for continuance is in the sound discretion of tlie trial judge and not subject to review in the absence of abuse of discretion.

3. Same—

Where a criminal prosecution is continued to the next regular term and prior thereto called for trial at a special term, there is no error for the court, to refuse a continuance to such regular term, on the ground of the *748unavoidable absence of a material expert witness for defense, it appearing tliat tbe solicitor agreed not to offer evidence on tbe facts, wbicli it was alleged would be denied by such absent witness.

3. Constitutional Law § 28: Criminal Law § 46—

There is no denial of prisoner’s right to confrontation, N. C. Const-Art. I, sec. 11, by the refusal of a motion to continue, on the ground of the absence of a material, expert, fingerprint witness, it appearing that the State’s solicitor agreed that he would not, and did not offer evidence as to fingerprints.

4. Criminal Law §§ 41g, 52b—

The evidence of accomplices is sufficient to carry the case to the jury and to justify a refusal of motion to nonsuit. C. S., 4643.

5. Criminal Law § 48e: Appeal and Error § 37b—

The refusal to allow accused to reopen the case and introduce further evidence, after the taking of evidence had been closed and solicitor’s argument concluded, was within the sound discretion of the trial judge and not subject to review except for manifest abuses thereof.

6. Trial § 33: Criminal Law § 53g—

Exceptions to the court’s statements of the evidence are untenable, where it does not appear in the record that the alleged errors were called to the attention of the court in time to make correction.

Appeal by defendant from Burney, J., at February Special Term, 1943, of New HaNOveb.

Tbe defendant was convicted of feloniously breaking and entering tbe warehouse of tbe Wilmington Coca-Cola Bottling Works, Inc., witb tbe intent of stealing chattels, money and valuable securities therein, and of tbe larceny of said personal property of said bottling works, and from judgment of imprisonment predicated on tbe verdict tbe defendant appealed, assigning error.

Attorney-General McMullan and Assistant Attorneys-General Patton and Rhodes for the State.

W. L. Farmer and W. F. Jones for defendant, appellant.

Sohettok, J.

Tbe bill of indictment upon which tbe defendant was convicted was found at tbe January Term, 1943, of tbe Superior Court of New Hanover County, and charged that tbe crime was committed on 13 September, 1942. At tbe January Term, upon tbe motion of tbe defendant tbe case was continued till tbe next ensuing regular term for tbe trial of criminal cases, which convened in March, 1943. Thereafter a special term for tbe trial of criminal cases was called by bis Excellency, tbe Governor, to convene on 22 February, 1943.

*749At tbe February Special Term, when tbe case was called for trial, tbe defendant lodged a motion for a continuance, wbicb motion was disallowed, and defendant preserved exception, and stressfully presented tbis exception botb in brief and oral argument on bis appeal to tbis Court.

Tbe basis of tbis motion for continuance was tbe inability of tbe defendant to bave in court as a witness one Walter C. Dean, an expert in fingerprint reading, wbo was sick in a hospital in Atlanta, Georgia. It was made to appear that tbe defendant bad arranged to bave tbis witness in court at tbe regular March Term of court, but was unable to bave him present at tbe February Term. It was further made to appear that it was tbe purpose of tbe defendant to use tbe testimony of tbe absent witness to contradict evidence wbicb tbe State would offer tending to show that certain fingerprints found on tbe safe, out of wbicb tbe chattels and money were taken, were those of tbe defendant. However, tbe record discloses that tbe solicitor for tbe State agreed that be would offer no evidence as to fingerprints, if tbe ease were tried at tbe February Term. In view of tbis agreement, the court’s refusal to allow tbe motion for continuance cannot be held for error. Tbe general rule is that tbe allowance of a motion for continuance is in tbe sound discretion of tbe trial judge. S. v. Lippard, ante, 167. However, tbe defendant contends that tbis case falls within an exception to tbe general rule and is governed by tbe recent case of S. v. Farrell, ante, 321. With tbis contention we do not concur. Farrell’s case is bottomed upon tbe theory that tbe defendant was denied bis constitutional right of confrontation, wbicb carried with it not only tbe right to face one’s accusers and witnesses with other testimony, but also an opportunity fairly to present one’s defense. No such situation is presented by tbe record in tbis ease. Tbe only purpose for wbicb it appears tbe expert witness was to be offered was to meet evidence of tbe State relative to fingerprints found on tbe safe from wbicb tbe property was taken. Tbe solicitor’s agreement to introduce no evidence as to fingerprints obviated any necessity for tbe testimony of tbe absent witness by way of confrontation or of presenting defendant’s defense. Tbe exceptive assignments of error relating to tbe disallowance of tbe motion for a continuance cannot be sustained.

The defendant contends that tbe court erred in overruling bis motion to dismiss tbe action duly lodged when tbe State bad produced its evidence and rested its case and renewed when all tbe evidence was concluded. (C. S., 4643.) Tbis contention is untenable. Two witnesses, wbo were originally indicted with tbe defendant and wbo subsequently tendered a plea of guilty, testified that they, together with tbe defendant, entered tbe warehouse, broke open the safe, removed tbe money therefrom, and divided it among tbe three. Tbis evidence alone, al*750though, the testimony of accomplices, was sufficient to carry tbe case to the jury, and to sustain the verdict. S. v. Lippard, supra.

We have carefully examined the other exceptive assignments of error in the record addressed to the admission and rejection of evidence and find that they are without merit. The refusal of the trial judge to allow the defendant to reopen the case and introduce further evidence after the taking of evidence had been closed and the solicitor had concluded his argument was referred to the sound discretion of the trial judge, to be reviewed, if at all, only in the case of manifest abuse, a condition that is by no means presented in this record. S. v. Roberts, 188 N. C., 460, 124 S. E., 833; S. v. Rash, 34 N. C., 382.

The exceptive assignments of error addressed to his Honor’s charge principally assail the statement of the evidence made by the court. These assignments are untenable for the reason that it does not appear in the record that the alleged errors were called to the attention of the court to enable him to make corrections if error there was. S. v. Hobbs, 216 N. C., 14, 3 S. E. (2d), 431; S. v. Wagstaff, 219 N. C., 15, 12 S. E. (2d), 657. His Honor was careful to tell the jury that it was their duty to consider all the evidence whether it was called to their attention or not, and to disregard what counsel, or even the court, stated the evidence was if such statement was at variance with their recollection thereof— that the jury’s recollection of the evidence should guide them in determining the facts.

While the entire charge does not appear in the record, we have carefully examined those excerpts which do appear and we find in them no prejudicial error.

In our opinion the case has been correctly tried and the judgment of the lower court must be affirmed.

No error.