State v. Parker

191 S.E.2d 244, 16 N.C. App. 165, 1972 N.C. App. LEXIS 1663

Opinion

VAUGHN, Judge.

Defendant first contends that the denial of his motion for continuance was error. It is well settled that the granting or denial of a motion for continuance rests in the discretion of the presiding judge and his decision will not be disturbed on appeal unless the defendant shows abuse of discretion or shows that he did not get a fair trial. State v. Blackmon, 280 N.C. 42, 185 S.E. 2d 123; State v. Fidler, 13 N.C. App. 626, 186 S.E. 2d 656. The presumption is in favor of the regularity of the trial below and the burden rests upon the defendant to show error which was prejudicial to him. State v. Partlow, 272 N.C. 60, 157 S.E. 2d 688; State v. Watson, 13 N.C. App. 189, 185 S.E. 2d 33. The defendant has failed to make any showing of prejudicial error resulting from denial of his motion for a continuance.

Defendant also asserts error in the judge’s failure to instruct the jury that it might return a verdict on the lesser included offense of assault. The record presents no evidence tending to show that defendant, if not guilty of the crime charged, was guilty of an assault. This and defendant’s remaining assignments of error are found to be without merit.

No error.

Judges Parker and Graham concur.