State v. Haire

Court of Appeals of North Carolina

State v. Haire

198 S.E.2d 31, 19 N.C. App. 89, 1973 N.C. App. LEXIS 1576

CourtCourt of Appeals of North Carolina

DecidedJuly 25, 1973

DocketNo. 7313SC526

StatusPublished

Cited by1 cases

This text of 198 S.E.2d 31 (State v. Haire) is published on Counsel Stack Legal Research, covering Court of Appeals 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. Haire, 198 S.E.2d 31, 19 N.C. App. 89, 1973 N.C. App. LEXIS 1576 (N.C. Ct. App. 1973).

Pincite

Opinion

BALEY, Judge.

Defendant assigns as error the failure of the court to appoint an attorney to represent him in his trial upon a felony [91]*91charge of committing a crime against nature. The assignment is well taken, and there must be a new trial.

G.S. 15-4 provides:

“Every person, accused of any crime whatsoever, shall be entitled to counsel in all matters which may be necessary for his defense.”

While defendant had waived his right to have assigned •counsel at the preliminary hearing, he made a specific request for a lawyer prior to the selection of the jury at his trial in the superior court. The finding of the court below that the defendant was not indigent was not supported by the evidence. The fact that the defendant was a painter capable of earning $60.00 per week when he was able to obtain work and that he had made little, if any, effort to secure counsel, either privately or by court appointment, is not sufficient to sustain a finding that he was not indigent at the time of trial, and, therefore, not entitled to a court-appointed attorney when it was requested at the trial.

G.S. 7A-450(c) provides:

“The question of indigency may be determined or redetermined by the court at any stage of the action or proceeding at which an indigent is entitled to representation.”

Proof of defendant’s guilt in this case was dependent in large measure upon the credibility of the prosecuting witness, and it was crucial that he have the assistance of an attorney for cross-examination and possible impeachment. U. S. Const., amend. VI; N. C. Const., art. 1, § 23; Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed. 2d 799, 83 S.Ct. 792, 93 A.L.R. 2d 733; State v. Morris, 275 N.C. 50, 165 S.E. 2d 245.

Denial of counsel without evidence to support a finding of non-indigency entitles defendant to a new trial. It is so ordered.

New trial.

Judges Campbell and Hedrick concur.

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BALEY, Judge.

Defendant assigns as error the failure of the court to appoint an attorney to represent him in his trial upon a felony [91]*91charge of committing a crime against nature. The assignment is well taken, and there must be a new trial.

G.S. 15-4 provides:

“Every person, accused of any crime whatsoever, shall be entitled to counsel in all matters which may be necessary for his defense.”

While defendant had waived his right to have assigned •counsel at the preliminary hearing, he made a specific request for a lawyer prior to the selection of the jury at his trial in the superior court. The finding of the court below that the defendant was not indigent was not supported by the evidence. The fact that the defendant was a painter capable of earning $60.00 per week when he was able to obtain work and that he had made little, if any, effort to secure counsel, either privately or by court appointment, is not sufficient to sustain a finding that he was not indigent at the time of trial, and, therefore, not entitled to a court-appointed attorney when it was requested at the trial.

G.S. 7A-450(c) provides:

“The question of indigency may be determined or redetermined by the court at any stage of the action or proceeding at which an indigent is entitled to representation.”

Proof of defendant’s guilt in this case was dependent in large measure upon the credibility of the prosecuting witness, and it was crucial that he have the assistance of an attorney for cross-examination and possible impeachment. U. S. Const., amend. VI; N. C. Const., art. 1, § 23; Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed. 2d 799, 83 S.Ct. 792, 93 A.L.R. 2d 733; State v. Morris, 275 N.C. 50, 165 S.E. 2d 245.

Denial of counsel without evidence to support a finding of non-indigency entitles defendant to a new trial. It is so ordered.

New trial.

Judges Campbell and Hedrick concur.

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Bluebook (online)

198 S.E.2d 31, 19 N.C. App. 89, 1973 N.C. App. LEXIS 1576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-haire-ncctapp-1973.

Opinion

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