State v. Whisnant

157 S.E.2d 545, 271 N.C. 736, 1967 N.C. LEXIS 1280

• Court: Supreme Court of North Carolina
• Decided: November 8, 1967
• Status: Published

Opinion

Per Curiam.

The defendant having plead guilty of assault with a deadly weapon in open court, it is to be presumed that the jurors were present and heard this plea. When it was withdrawn and the defendant placed on trial the next day, we can only assume that the jurors remembered this and that the defendant was thus placed in a prejudiced position in his trial.

While the court could not compel the attendance of witnesses from Florida and West Virginia, it is possible that had the case been continued for the term, or at least continued until the second week as requested by the defendant, that he might have been able to persuade them to come to Lenoir for his trial.

While only vague reasons were given for the motions to continue and to postpone the trial, counsel was entitled to a reasonable time in which to investigate the case against his new client.

In State v. Whitfield, 206 N.C. 696, 176 S.E. 93, Chief Justice Stacy said:

“[T]he right of confrontation carries with it, not only the right to face one’s ‘accusers and witnesses with other testimony’ (see. 11, Bill of Rights), but also the opportunity fairly to present one’s defense. ... A right observed according to form, but at variance with substance, is a right denied.” (showing citations.)

“That a reasonable time for the preparation of a defendant’s case should be allowed counsel appointed by the court to defend him commends itself, not only as a rule of reason, but also as a rule of law, and is so established by the decisions. Annotation, 84 A.L.R., 644.”

The defendant assigns other alleged errors, but since they will probably not be repeated in a future trial, we find it unnecessary to discuss them.

New trial.