ERWIN, Judge.
Defendant presents five arguments for our determination:
“I. That the trial court erred in denying the appellant’s motion and by declaring a mistrial following the first trial of this matter in February of 1979
II. That the trial court erred in granting the State’s motion for a continuance [on 12 March 1979]
III. That the trial court erred in denying the appellant’s motion for dismissal at the end of the State’s evidence
IV. That the trial court erred in its charge to the jury
V. That the trial court erred by not directly answering the question posed to it by the jurors deliberating this cause”
We find no prejudicial error in the trial of defendant.
Mistrial February 1979
In this assignment of error, we note that defendant did not move or request to have his cases tried as soon as possible, nor does the record show that he objected to delay in his trial from November 1978 to February 1979. We also note that defendant did not plead at the second trial that jeopardy applied in this case.
We hold that this case is controlled by State v. Birckhead, 256 N.C. 494, 506, 124 S.E. 2d 838, 848 (1962), wherein our Supreme Court held:
“We conclude that the trial judge in cases less than capital may, in the exercise of sound discretion, order a mistrial before verdict, without the consent of defendant, for physical necessity such as the incapacitating illness of judge, juror or material witness, and for ‘necessity of doing justice.’ He need not support his order by findings of fact. His order is not reviewable except for gross abuse of discretion, and the burden is upon defendant to show such abuse. But the discretion of the trial judge is not unlimited, and if it be affirmatively shown that no physical necessity or ‘necessity for doing justice’ existed, the order of mistrial will be deemed [185]*185arbitrary and beyond the scope of the court’s discretion. Where a court acts arbitrarily and beyond the bounds of its discretion under the semblance of exercising discretion, such action by the court amounts to a gross abuse of discretion.”
This principle of law, as stated in State v. Birckhead, supra, has been followed by our Supreme Court in the following cases: State v. Small, 293 N.C. 646, 239 S.E. 2d 429 (1977); State v. Daye, 281 N.C. 592, 189 S.E. 2d 481 (1972); State v. Battle, 279 N.C. 484, 183 S.E. 2d 641 (1971); State v. Battle, 267 N.C. 513, 148 S.E. 2d 599 (1966); State v. Pfeifer, 266 N.C. 790, 147 S.E. 2d 190 (1966). State v. Birckhead, supra, has been followed by this Court in State v. McGhee, 16 N.C. App. 702, 193 S.E. 2d 446 (1972), cert. denied, 282 N.C. 674, 194 S.E. 2d 154 (1973); State v. Anderson, 9 N.C. App. 146, 175 S.E. 2d 729 (1970); State v. Preston, 9 N.C. App. 71, 175 S.E. 2d 705 (1970).
The order entered by Judge McKinnon may be reversed by this Court only if gross abuse of discretion appears from the record. State v. Guice, 201 N.C. 761, 161 S.E. 533 (1931). The record before us shows that defendant did not contest the mistrial order entered or any matter therein; that on Tuesday afternoon, there was a snowfall of five inches, and court did not convene on Wednesday because of weather conditions; but that court convened on Thursday and recessed until Friday morning at 9:30 a.m. Again, snow began to fall about 7:00 a.m. The court advised the sheriff to tell any jurors who called that they should proceed to court and be present by 9:30 a.m. By 10:00 a.m., seven jurors were present. The court was advised that a changed weather report indicated that the snow accumulation would be from two to three inches and that travel would be hazardous for the remainder of the day. In addition, the following event occurred:
“[T]hat one juror, Mrs. Ballew, had reported that she was ill and believed that she had the flu and that other jurors were calling to know whether they should come in view of a continuing snow and hazardous conditions of the road. That the Court directed the Clerk to have Mrs. Ballew consult a doctor by telephone and to report as to his diagnosis and instruction. Mrs. Ballew has reported that she has consulted a [186]*186Dr. Jones, that he has diagnosed her situation as intestional flu and advised that she stay at home.”
The court’s order provided the following, inter alia:
“The Court finds the foregoing statements to be facts and upon these facts is of the opinion that it is impossible for the trial to proceed in conformity with law in that the delay of the trial and further jury deliberations until Monday would not be fair either to the jurors or to the parties to the action, that the length of the trial was such that it may reasonably be tried again in the near future and without injury to the rights of the State or of the defendant, and the Court is of the opinion that the interest of justice will best be served by a mistrial at this time and a retrial of the action at the earliest convenient session.
It Is, Therefore, Ordered that by reason of the illness of the juror, Mrs. Ballew, she is withdrawn as a juror and a mistrial of the action is declared.”
From this record, we cannot find abuse of discretion on the part of Judge McKinnon. He was faced with crucial problems beyond his control, and his response was in the best interest of justice for all parties. We overrule this assignment of error as being without merit.
State’s Motion to Continue on 12 March 1979
Defendant contends the granting of the State’s motion to continue after the court’s order directing a mistrial denied him a right to a speedy trial and that he was prejudiced by the delay, not only in terms of having new evidence introduced against him but also in terms of the effect of further delay on the memories of witnesses and on his own right to a final determination of the charges against him.
First, we note that defendant did not testify nor did he call any witnesses on his behalf. Therefore, the effect of the memories of witnesses would not apply to him. The record does not include a written motion by the State to continue the cases nor does it contain defendant’s answer to such motion. Without these documents, we can only review the order entered by the trial judge. We also note that on 12 March 1979, defendant had not re[187]*187quested that his trial be placed on the docket for trial nor had he made a motion for a speedy trial.
The court found, inter alia:
“3. F.B.I. Agent Frier, who has made an examination of evidence in this case and who would be a witness for the State in the trial of this case, is from out of state, is to be testifying in the State of Utah this week, and has advised the District Attorney that he is not available for testimony in the trial of this case this week, and
4.
Free access — add to your briefcase to read the full text and ask questions with AI
ERWIN, Judge.
Defendant presents five arguments for our determination:
“I. That the trial court erred in denying the appellant’s motion and by declaring a mistrial following the first trial of this matter in February of 1979
II. That the trial court erred in granting the State’s motion for a continuance [on 12 March 1979]
III. That the trial court erred in denying the appellant’s motion for dismissal at the end of the State’s evidence
IV. That the trial court erred in its charge to the jury
V. That the trial court erred by not directly answering the question posed to it by the jurors deliberating this cause”
We find no prejudicial error in the trial of defendant.
Mistrial February 1979
In this assignment of error, we note that defendant did not move or request to have his cases tried as soon as possible, nor does the record show that he objected to delay in his trial from November 1978 to February 1979. We also note that defendant did not plead at the second trial that jeopardy applied in this case.
We hold that this case is controlled by State v. Birckhead, 256 N.C. 494, 506, 124 S.E. 2d 838, 848 (1962), wherein our Supreme Court held:
“We conclude that the trial judge in cases less than capital may, in the exercise of sound discretion, order a mistrial before verdict, without the consent of defendant, for physical necessity such as the incapacitating illness of judge, juror or material witness, and for ‘necessity of doing justice.’ He need not support his order by findings of fact. His order is not reviewable except for gross abuse of discretion, and the burden is upon defendant to show such abuse. But the discretion of the trial judge is not unlimited, and if it be affirmatively shown that no physical necessity or ‘necessity for doing justice’ existed, the order of mistrial will be deemed [185]*185arbitrary and beyond the scope of the court’s discretion. Where a court acts arbitrarily and beyond the bounds of its discretion under the semblance of exercising discretion, such action by the court amounts to a gross abuse of discretion.”
This principle of law, as stated in State v. Birckhead, supra, has been followed by our Supreme Court in the following cases: State v. Small, 293 N.C. 646, 239 S.E. 2d 429 (1977); State v. Daye, 281 N.C. 592, 189 S.E. 2d 481 (1972); State v. Battle, 279 N.C. 484, 183 S.E. 2d 641 (1971); State v. Battle, 267 N.C. 513, 148 S.E. 2d 599 (1966); State v. Pfeifer, 266 N.C. 790, 147 S.E. 2d 190 (1966). State v. Birckhead, supra, has been followed by this Court in State v. McGhee, 16 N.C. App. 702, 193 S.E. 2d 446 (1972), cert. denied, 282 N.C. 674, 194 S.E. 2d 154 (1973); State v. Anderson, 9 N.C. App. 146, 175 S.E. 2d 729 (1970); State v. Preston, 9 N.C. App. 71, 175 S.E. 2d 705 (1970).
The order entered by Judge McKinnon may be reversed by this Court only if gross abuse of discretion appears from the record. State v. Guice, 201 N.C. 761, 161 S.E. 533 (1931). The record before us shows that defendant did not contest the mistrial order entered or any matter therein; that on Tuesday afternoon, there was a snowfall of five inches, and court did not convene on Wednesday because of weather conditions; but that court convened on Thursday and recessed until Friday morning at 9:30 a.m. Again, snow began to fall about 7:00 a.m. The court advised the sheriff to tell any jurors who called that they should proceed to court and be present by 9:30 a.m. By 10:00 a.m., seven jurors were present. The court was advised that a changed weather report indicated that the snow accumulation would be from two to three inches and that travel would be hazardous for the remainder of the day. In addition, the following event occurred:
“[T]hat one juror, Mrs. Ballew, had reported that she was ill and believed that she had the flu and that other jurors were calling to know whether they should come in view of a continuing snow and hazardous conditions of the road. That the Court directed the Clerk to have Mrs. Ballew consult a doctor by telephone and to report as to his diagnosis and instruction. Mrs. Ballew has reported that she has consulted a [186]*186Dr. Jones, that he has diagnosed her situation as intestional flu and advised that she stay at home.”
The court’s order provided the following, inter alia:
“The Court finds the foregoing statements to be facts and upon these facts is of the opinion that it is impossible for the trial to proceed in conformity with law in that the delay of the trial and further jury deliberations until Monday would not be fair either to the jurors or to the parties to the action, that the length of the trial was such that it may reasonably be tried again in the near future and without injury to the rights of the State or of the defendant, and the Court is of the opinion that the interest of justice will best be served by a mistrial at this time and a retrial of the action at the earliest convenient session.
It Is, Therefore, Ordered that by reason of the illness of the juror, Mrs. Ballew, she is withdrawn as a juror and a mistrial of the action is declared.”
From this record, we cannot find abuse of discretion on the part of Judge McKinnon. He was faced with crucial problems beyond his control, and his response was in the best interest of justice for all parties. We overrule this assignment of error as being without merit.
State’s Motion to Continue on 12 March 1979
Defendant contends the granting of the State’s motion to continue after the court’s order directing a mistrial denied him a right to a speedy trial and that he was prejudiced by the delay, not only in terms of having new evidence introduced against him but also in terms of the effect of further delay on the memories of witnesses and on his own right to a final determination of the charges against him.
First, we note that defendant did not testify nor did he call any witnesses on his behalf. Therefore, the effect of the memories of witnesses would not apply to him. The record does not include a written motion by the State to continue the cases nor does it contain defendant’s answer to such motion. Without these documents, we can only review the order entered by the trial judge. We also note that on 12 March 1979, defendant had not re[187]*187quested that his trial be placed on the docket for trial nor had he made a motion for a speedy trial.
The court found, inter alia:
“3. F.B.I. Agent Frier, who has made an examination of evidence in this case and who would be a witness for the State in the trial of this case, is from out of state, is to be testifying in the State of Utah this week, and has advised the District Attorney that he is not available for testimony in the trial of this case this week, and
4. That Agent Frier advised the State on March 10, 1979, that if the State presented him with sample hair from the victim and the defendant he could make further comparisons which may be substantial in the determination of the guilt or innocence of the Defendant (the hair has not yet been taken from the defendant, because he declined to make it available to the State voluntarily).
The Court therefore concludes that for the reasons set forth above, the ends of justice served by granting the continuance outweigh the best interest of the public and the defendant in a speedy trial.”
The ruling on a motion for a continuance is within the discretion of the trial court. State v. Thomas, 294 N.C. 105, 240 S.E. 2d 426 (1978). The record does not show that any acts on the part of the State were purposefully used to delay defendant’s trial. This case does not fall within the holding in the case of State v. McKoy, 294 N.C. 134, 240 S.E. 2d 383 (1978), wherein defendant made several requests for a trial of the charges against him, and those requests were denied. This Court, in State v. Lamb, 39 N.C. App. 334, 337-38, 249 S.E. 2d 887, 890, appeal dismissed, 296 N.C. 738, 254 S.E. 2d 180 (1979), stated: “While failure to demand a speedy trial does not waive that right, State v. Hill, supra [287 N.C. 207, 214 S.E. 2d 67 (1975)], ‘failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.’ ” After considering and balancing the factors: (1) the length of delay, (2) the reason for the delay, (3) defendant’s assertion of his right to a speedy trial, and (4) prejudice to defendant [188]*188resulting from the delay, we find no error. State v. Smith, 289 N.C. 143, 221 S.E. 2d 247 (1976).
Motion for Judgment as of Nonsuit
The trial court denied defendant’s motion, which we will treat as a motion for judgment in the case of nonsuit. State v. Britt, 285 N.C. 256, 204 S.E. 2d 817 (1974). Upon defendant’s motion, as here, the evidence must be considered in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom. Where there is sufficient evidence, direct or circumstantial, by which the jury could find the defendant - had committed the offense charged, then the motion should be denied. State v. Hunter, 290 N.C. 556, 227 S.E. 2d 535 (1976), cert. denied, 429 U.S. 1093, 51 L.Ed. 2d 539, 97 S.Ct. 1106 (1977); 4 Strong’s N.C. Index 3d, Criminal Law, § 106, p. 547. Suffice it to say that in applying the above rule to the case sub judice, the evidence was ample to submit the cases to the jury and for the jury to return a verdict thereon. We find no error.
Charge of the Court
After the jurors had deliberated, they returned to the courtroom to ask the judge a question. After the answer was given by the court, the court asked the jury the following questions: “Does that answer your question? Any other question at this time?” The foreman answered, “No, sir.” The foreman was given a clear tablet upon his request. The jury returned to its room and later returned a verdict in open court.
Defendant contends that the foreman was asked two questions by the court, and he gave only one answer. From this, defendant concludes that the trial judge did not answer the question asked by the jury, that is, the answer applied to the first question asked by the court. We are unable to follow this reasoning. When the jury needed to ask a question, it did. It follows that if it wanted to follow up on the first question, it would have. The opportunity was present. We cannot see how this was prejudicial to defendant. Defendant’s counsel did not make any statement or call the matter to the attention of the court. This contention is without merit.
[189]*189From our study of the entire charge, we find it to be clear, the law was properly applied to the evidence, and there were no conflicts in it. Again, we find no prejudicial error. 4 Strong’s N.C. Index 3d, Criminal Law, § 111, p. 564.
Conclusion
In the trial of defendant, we find no prejudicial error.
No error.
Judges MARTIN (Robert M.) and WELLS concur.