State v. Payne

Court of Appeals of North Carolina

State v. Payne

180 S.E.2d 379, 11 N.C. App. 101, 1971 N.C. App. LEXIS 1458

CourtCourt of Appeals of North Carolina

DecidedApril 28, 1971

DocketNo. 7124SC96

StatusPublished

Cited by1 cases

This text of 180 S.E.2d 379 (State v. Payne) 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. Payne, 180 S.E.2d 379, 11 N.C. App. 101, 1971 N.C. App. LEXIS 1458 (N.C. Ct. App. 1971).

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Opinions

CAMPBELL, Judge.

Defendant’s first assignment of error is directed at the court’s refusal to grant defendant’s motion for a continuance. The motion was based on the fact that an essential defense witness was not present in court, although a subpoena had been issued. A motion for a continuance is addressed to the discretion of the court and should not be disturbed absent a showing of an abuse of this discretion. State v. Patton, 5 N.C. App. 164, 167 S.E. 2d 821 (1969), cert. denied, 275 N.C. 597 (1969).

Here, no abuse of the trial judge’s discretion is shown. The record discloses that the “essential defense witness” was Dean Henderson, the man that defendant claimed was driving the pick-up truck. Dean Henderson was not present nor was he subpoenaed for the trial in the district court. Both the Sheriff of Madison County and a deputy sheriff testified as to the efforts they made to locate Dean Henderson and serve the subpoena. The deputy sheriff testified that he was unable to locate Dean Henderson and was informed that he was out of the county. The defendant himself testified that:

“ ... It has been over a month or more since I talked to Dean Henderson. There’s no use trying to get him here. ... He said that he didn’t want to come to Court. ...”

“ . . . I believe that he might be in Buncombe County with his sister. He spends a week with her now and then. It has been over a month since I have seen him. — It’s not been that long. He was down on the river fishing one night [103]*103with his sister, the one that lives in Buncombe County. I really don’t know anything about Buncombe, or him. He might spend a week up there with his sister, or a day, I don’t know.”

Under these circumstances, no abuse of discretion is shown, and defendant’s first assignment of error is overruled.

Defendant next assigns as error the failure of the trial judge to grant defendant’s motion for a mistrial where a witness for the State gave a nonresponsive answer on cross-examination. As a general rule, a motion for a mistrial is addressed to the discretion of the trial judge, and the ruling thereon is not reviewable on appeal in the absence of a showing of an abuse of discretion. State v. Williams, 7 N.C. App. 51, 171 S.E. 2d 39 (1969) ; State v. Battle, 267 N.C. 513, 148 S.E. 2d 599 (1966). Here, the testimony complained of was elicited by counsel for defendant on cross examination; the record does not disclose what the question was that brought about the answer of the witness; and apparently no motion to strike the testimony was made. From these facts, no abuse of discretion can be seen.

We have reviewed defendant’s remaining assignments of error and find them to be without merit.

For the reasons stated, in the trial below there was

No error.

Judge Britt concurs. Judge Graham dissents.

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CAMPBELL, Judge.

Defendant’s first assignment of error is directed at the court’s refusal to grant defendant’s motion for a continuance. The motion was based on the fact that an essential defense witness was not present in court, although a subpoena had been issued. A motion for a continuance is addressed to the discretion of the court and should not be disturbed absent a showing of an abuse of this discretion. State v. Patton, 5 N.C. App. 164, 167 S.E. 2d 821 (1969), cert. denied, 275 N.C. 597 (1969).

Here, no abuse of the trial judge’s discretion is shown. The record discloses that the “essential defense witness” was Dean Henderson, the man that defendant claimed was driving the pick-up truck. Dean Henderson was not present nor was he subpoenaed for the trial in the district court. Both the Sheriff of Madison County and a deputy sheriff testified as to the efforts they made to locate Dean Henderson and serve the subpoena. The deputy sheriff testified that he was unable to locate Dean Henderson and was informed that he was out of the county. The defendant himself testified that:

“ ... It has been over a month or more since I talked to Dean Henderson. There’s no use trying to get him here. ... He said that he didn’t want to come to Court. ...”

“ . . . I believe that he might be in Buncombe County with his sister. He spends a week with her now and then. It has been over a month since I have seen him. — It’s not been that long. He was down on the river fishing one night [103]*103with his sister, the one that lives in Buncombe County. I really don’t know anything about Buncombe, or him. He might spend a week up there with his sister, or a day, I don’t know.”

Under these circumstances, no abuse of discretion is shown, and defendant’s first assignment of error is overruled.

Defendant next assigns as error the failure of the trial judge to grant defendant’s motion for a mistrial where a witness for the State gave a nonresponsive answer on cross-examination. As a general rule, a motion for a mistrial is addressed to the discretion of the trial judge, and the ruling thereon is not reviewable on appeal in the absence of a showing of an abuse of discretion. State v. Williams, 7 N.C. App. 51, 171 S.E. 2d 39 (1969) ; State v. Battle, 267 N.C. 513, 148 S.E. 2d 599 (1966). Here, the testimony complained of was elicited by counsel for defendant on cross examination; the record does not disclose what the question was that brought about the answer of the witness; and apparently no motion to strike the testimony was made. From these facts, no abuse of discretion can be seen.

We have reviewed defendant’s remaining assignments of error and find them to be without merit.

For the reasons stated, in the trial below there was

No error.

Judge Britt concurs. Judge Graham dissents.

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Bluebook (online)

180 S.E.2d 379, 11 N.C. App. 101, 1971 N.C. App. LEXIS 1458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-payne-ncctapp-1971.

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