State v. . Whitfield

175 S.E. 93, 206 N.C. 696, 1934 N.C. LEXIS 281

• Court: Supreme Court of North Carolina
• Decided: June 20, 1934
• Status: Published

Opinion

Stacy, O. J.

Did the refusal of the trial court to grant the prisoner’s motion for a continuance impinge upon his constitutional right of confrontation? All the assignments of error, properly made, revolve around this one question.

The rule undoubtedly is, that the right of confrontation carries with it, not only the right to face one’s “accusers and witnesses with other testimony” (sec. 11, Bill of Rights), but also the opportunity fairly to present one’s defense. S. v. Ross, 193 N. C., 25, 136 S. E., 193; S. v. Hartsfield, 188 N. C., 357, 124 S. E., 629. A right observed according to form, but at' variance with substance, is a right denied. S. v. Garner, 203 N. C., 361, 166 S. E., 180; S. v. Hightower, 187 N. C., 300, 121 S. E., 616; S. v. Hardy, 189 N. C., 799, 128 S. E., 152.

Speaking to the subject in Powell v. Alabama, 287 U. S., 45, it was said by the Court of final authority that “in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeblemindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.”

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., 544.

On the other hand, it is equally well established in this jurisdiction that a motion for a continuance is addressed to the sound discretion of the trial court, and its ruling thereon is not subject to review on appeal, except in case of manifest abuse. S. v. Lea, 203 N. C., 13, 164 S. E., 737; S. v. Banks, 204 N. C., 233, 167 S. E., 851; S. v. Garner, supra; In re Bank, 202 N. C., 251, 162 S. E., 568; S. v. Rhodes, 202 N. C., 101, 161 S. E., 722; S. v. Sauls, 190 N. C., 810, 130 S. E., 848; S. v. Riley, 188 N. C., 72, 123 S. E., 303.

In the instant ease, the alleged crime was committed on 3 October; the prisoner was apprehended about a week later, and duly indicted at the October Term of court; he was arraigned on 23 October, and counsel appointed to represent him; his trial was set for 25 October. The facts were simple and the controversy reduced itself to a question of veracity between the prosecuting witness and the prisoner. There were no other witnesses to the crime. We cannot say, as a matter of law, that in ruling the defendant to trial, the court took from him his constitutional right of confrontation. S. v. Rodman, 188 N. C., 720, 125 S. E., 486; S. v. Burnett, 184 N. C., 783, 115 S. E., 57; S. v. Henderson, 180 N. C., 735, 105 S. E., 339; S. v. Sultan, 142 N. C., 569, 54 S. E., 841; S. v. Dewey, 139 N. C., 556, 51 S. E., 937. In the absence of a clear showing of error, the exceptions must be overruled. S. v. Garner, supra.

No error.

SoheNCk, J., took no part in the consideration or decision of this case.