State v. Lane

Supreme Court of North Carolina

State v. Lane

128 S.E.2d 389, 258 N.C. 349, 1962 N.C. LEXIS 674

CourtSupreme Court of North Carolina

DecidedDecember 12, 1962

Docket653

StatusPublished

Cited by20 cases

This text of 128 S.E.2d 389 (State v. Lane) 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. Lane, 128 S.E.2d 389, 258 N.C. 349, 1962 N.C. LEXIS 674 (N.C. 1962).

Pincite

Opinion

Per Curiam.

The defendant’s only assignments of error are to the denial of his motions for a continuance and a mistrial. He contends that his request for a continuance was based on a right guaranteed by the Fourteenth Amendment to the United States Constitution and by Article I, sections 11 and 17 of the North Carolina Constitution.

Ordinarily, whether a case shall be continued rests in the sound discretion of the trial judge. “But when the motion is based on a *351 right guaranteed by the the Federal and State Constitutions, 14th Amend., U. S. Const., Art. I, sections 11 and 17, N. C. Const., the question presented is one of law and not of discretion, and the decision of the court below is reviewable.” State v. Farrell, 223 N.C. 321, 26 S.E. 2d 322.

There is no statutory requirement in this jurisdiction that the court must appoint counsel for indigent defendants not accused of capital felonies. If counsel is requested and the circumstances show an apparent necessity for counsel to protect his rights, a defendant has the constitutional right to have counsel assigned him. Otherwise, the propriety of providing counsel for a person accused of an offense less than capital is in the discretion of the trial judge. State v. Davis, 248 N.C. 318, 103 S.E. 2d 289.

In this case the trial judge, presumably in recognition of an apparent necessity, of his own motion appointed counsel for defendant. Thereafter, the defendant and his counsel were entitled to a reasonable opportunity in the light of all the attendant circumstances to investigate, prepare, and present his defense. State v. Speller, 230 N.C. 345, 53 S.E. 2d 294. “The rule undoubtedly is, that the right of confrontation carries with it not only the right to face one’s ‘accuser and witnesses with other testimony’ (sec. 11, Bill of Rights), but also the opportunity fairly to present one’s defense.” State v. Farrell, supra. On the record in the instant case, we cannot say that the defendant has had this opportunity. He has decided that he wants to assume the risks involved in a new trial. He is entitled to pursue his rights if so minded. In re Taylor, 229 N.C. 297, 49 S.E. 2d 749.

For the reasons indicated, it is ordered that there be a new trial.

New trial.

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Per Curiam.

The defendant’s only assignments of error are to the denial of his motions for a continuance and a mistrial. He contends that his request for a continuance was based on a right guaranteed by the Fourteenth Amendment to the United States Constitution and by Article I, sections 11 and 17 of the North Carolina Constitution.

Ordinarily, whether a case shall be continued rests in the sound discretion of the trial judge. “But when the motion is based on a *351 right guaranteed by the the Federal and State Constitutions, 14th Amend., U. S. Const., Art. I, sections 11 and 17, N. C. Const., the question presented is one of law and not of discretion, and the decision of the court below is reviewable.” State v. Farrell, 223 N.C. 321, 26 S.E. 2d 322.

There is no statutory requirement in this jurisdiction that the court must appoint counsel for indigent defendants not accused of capital felonies. If counsel is requested and the circumstances show an apparent necessity for counsel to protect his rights, a defendant has the constitutional right to have counsel assigned him. Otherwise, the propriety of providing counsel for a person accused of an offense less than capital is in the discretion of the trial judge. State v. Davis, 248 N.C. 318, 103 S.E. 2d 289.

In this case the trial judge, presumably in recognition of an apparent necessity, of his own motion appointed counsel for defendant. Thereafter, the defendant and his counsel were entitled to a reasonable opportunity in the light of all the attendant circumstances to investigate, prepare, and present his defense. State v. Speller, 230 N.C. 345, 53 S.E. 2d 294. “The rule undoubtedly is, that the right of confrontation carries with it not only the right to face one’s ‘accuser and witnesses with other testimony’ (sec. 11, Bill of Rights), but also the opportunity fairly to present one’s defense.” State v. Farrell, supra. On the record in the instant case, we cannot say that the defendant has had this opportunity. He has decided that he wants to assume the risks involved in a new trial. He is entitled to pursue his rights if so minded. In re Taylor, 229 N.C. 297, 49 S.E. 2d 749.

For the reasons indicated, it is ordered that there be a new trial.

New trial.

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Bluebook (online)

128 S.E.2d 389, 258 N.C. 349, 1962 N.C. LEXIS 674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lane-nc-1962.

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