State v. Ferebee

Supreme Court of North Carolina

State v. Ferebee

146 S.E.2d 666, 266 N.C. 606, 1966 N.C. LEXIS 1394

CourtSupreme Court of North Carolina

DecidedMarch 2, 1966

Docket3

StatusPublished

Cited by23 cases

This text of 146 S.E.2d 666 (State v. Ferebee) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Ferebee, 146 S.E.2d 666, 266 N.C. 606, 1966 N.C. LEXIS 1394 (N.C. 1966).

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Opinion

Bobbitt, J.

Defendant’s purported assignments of error are not based on exceptions duly noted in apt time and are ineffectual. 1 Strong, N. C. Index, Appeal and Error § 19.

Defendant’s brief asserts the “Question Involved” is: “Did the Court, in refusing to continué this case to a subsequent term, deprive the defendant of constitutional rights to which he was entitled?”

“Granting or denying a motion for continuance rests in the sound discretion of the presiding judge and his decision will not be disturbed on appeal, except for abuse of discretion or a showing the defendant has been deprived of a fair trial.” S. v. Ipock, 242 N.C. 119, 86 S.E. 2d 798; 1 Strong, N. C. Index, Criminal Law § 86. Defendant has failed to show abuse of discretion or that he has been deprived of a fair trial.

“In the application of this fundamental principle (the right of confrontation) it has been held that in a capital felony the prisoner cannot waive his right to be present at any stage of the trial. Not only has he a right to be present; he must be present. S. v. Kelly, 97 N.C. 404; S. v. Dry, 152 N.C. 813. In felonies less than capital the right to be present can be waived only by the defendant himself (S. v. Jenkins, 84 N.C. 813), but in misdemeanors the right may be waived by the defendant through his counsel with the consent of the court. S. v. Dry, supra; S. v. Cherry, 154 N.C. 624.” S. v. O’Neal, 197 N.C. 548, 149 S.E. 860; S. v. Hartsfield, 188 N.C. 357, 124 S.E. 629; Cotton Mills v. Local 578, 251 N.C. 218, 228-229, 111 5.E. 2d 457. True, a sentence imposing corporal punishment may not be pronounced against a defendant in his absence. S. v. Brooks, 211 *610 N.C. 702, 191 S.E. 749, and cases cited. Here, the judgment pronounced imposes no active or suspended sentence of corporal punishment. The fine and costs are collectible as provided in G.S. 15-185. See S. v. Bryant, 251 N.C. 423, 111 S.E. 2d 591.

Since defendant has failed to show error, Judge Clarkson’s judgment is affirmed.

Affirmed.

Moore, J., not sitting.

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Bobbitt, J.

Defendant’s purported assignments of error are not based on exceptions duly noted in apt time and are ineffectual. 1 Strong, N. C. Index, Appeal and Error § 19.

Defendant’s brief asserts the “Question Involved” is: “Did the Court, in refusing to continué this case to a subsequent term, deprive the defendant of constitutional rights to which he was entitled?”

“Granting or denying a motion for continuance rests in the sound discretion of the presiding judge and his decision will not be disturbed on appeal, except for abuse of discretion or a showing the defendant has been deprived of a fair trial.” S. v. Ipock, 242 N.C. 119, 86 S.E. 2d 798; 1 Strong, N. C. Index, Criminal Law § 86. Defendant has failed to show abuse of discretion or that he has been deprived of a fair trial.

“In the application of this fundamental principle (the right of confrontation) it has been held that in a capital felony the prisoner cannot waive his right to be present at any stage of the trial. Not only has he a right to be present; he must be present. S. v. Kelly, 97 N.C. 404; S. v. Dry, 152 N.C. 813. In felonies less than capital the right to be present can be waived only by the defendant himself (S. v. Jenkins, 84 N.C. 813), but in misdemeanors the right may be waived by the defendant through his counsel with the consent of the court. S. v. Dry, supra; S. v. Cherry, 154 N.C. 624.” S. v. O’Neal, 197 N.C. 548, 149 S.E. 860; S. v. Hartsfield, 188 N.C. 357, 124 S.E. 629; Cotton Mills v. Local 578, 251 N.C. 218, 228-229, 111 5.E. 2d 457. True, a sentence imposing corporal punishment may not be pronounced against a defendant in his absence. S. v. Brooks, 211 *610 N.C. 702, 191 S.E. 749, and cases cited. Here, the judgment pronounced imposes no active or suspended sentence of corporal punishment. The fine and costs are collectible as provided in G.S. 15-185. See S. v. Bryant, 251 N.C. 423, 111 S.E. 2d 591.

Since defendant has failed to show error, Judge Clarkson’s judgment is affirmed.

Affirmed.

Moore, J., not sitting.

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146 S.E.2d 666, 266 N.C. 606, 1966 N.C. LEXIS 1394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ferebee-nc-1966.

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