State v. Gibson

• Decision Date: 24 November 1948
• Docket Number: 506
• Parties: STATE v. GIBSON.
• Court: North Carolina Supreme Court

50 S.E.2d 520

229 N.C. 497

STATE v. GIBSON.

No. 506

Supreme Court of North Carolina

November 24, 1948

The indictment alleged that on September 5, 1948 the prisoner perpetrated the capital felony of rape upon a 'female child under the age of twelve years' contrary to G.S. s 14-21. He was arrested the same day, and indicted on the morning of September 13, 1948, which was the opening day of the term. Immediately after the return of the indictment, the presiding judge found that the accused was not able to employ counsel, and appointed attorneys to defend him. After he had consulted with his counsel, the prisoner was arraigned and entered a general plea of not guilty, and the case was set for trial at two o'clock on the afternoon of the following day, i. e., September 14, 1948.

After the arraignment and before the trial, counsel for the accused moved orally for a continuance of the trial to a subsequent term. The record entry pertaining thereto is as follows:

'Counsel for defendant: We are moving for a continuance in the case on the grounds: First, that we haven't had ample time to prepare the case; second, that after conferring with the defendant we feel that he should be examined by a competent physician, and that due to the fact that he doesn't have any money the Court should order this examination. He should have a thorough examination. Any doctor will probably want to observe him over a period of two days.

'Court Do you want it continued for any other witnesses than a doctor?

'Counsel for defendant: His father has laryngitis. We might be able to hear him and we might not.

'Solicitor You don't make any contention that this defendant doesn't know right from wrong?

'Counsel for defense: I do, at times.

'Court: Motion denied.

'Counsel for defendant: Exception. Defendant's Exception No. 1.

'Court: Let the record show that counsel for defendant were appointed by the Court on the morning of September 13, 1948, and that this action was set for trial at 2:00 P. M. the afternoon of September 14, 1948.'

Trial proceeded according to schedule. The State offered testimony of a compelling nature tending to establish the matters set out in this paragraph. The prisoner, an adult man, enticed the prosecutrix, a small girl about ten years of age, into woods in or near Cramerton, and raped her, seriously lacerating her vaginal tissues and causing much hemorrhage. The prosecutrix made outcry at once and was carried to physicians, who observed her torn and bleeding state, and expressed opinion that it resulted from forcible penetration. Officers of the Sheriff's department arrested the prisoner in Gastonia some hours after the offense, and found blood and semen on the clothing he wore at the time. When apprehended, the prisoner was sober and sensible. Shortly thereafter, he confessed to sexual intercourse with the prosecutrix, and piloted officers to the spot in the woods where the assault took place.

The prisoner testified in substance that he suffered from a periodical amnesia on the day named in the indictment, and did not know where he was or what he did. Cross-examination indicated, however, that the memory of the accused was rather reliable with respect to events at other times and places.

His father testified that he was not normal in that he was addicted to brooding and the use of aspirin and 'Standback.'

The jury found the prisoner 'guilty of rape as charged in the bill of indictment. ' The Court refused to set aside the verdict, and entered judgment that the prisoner suffer death by the administration of lethal gas in conformity to the Statute, G.S. s 15-187. Thereupon the prisoner appealed to this Court.

Harry M. McMullan Atty. Gen., and T. W. Bruton, Hughes J. Rhodes, and Ralph M. Moody. Asst. Attys. Gen., for the State.

O. A. Warren, of Gastonia, and W. J. Allran, Jr., of Cherryville, for prisoner, appellant.

ERVIN Justice.

The sole basis for the demand of the prisoner for a new trial is that the court erred to his prejudice in refusing a continuance of the case.

While the circumstances lend some color to the argument that trial was had in the court below with regrettable dispatch, we must perform our function as an appellate court with due regard for the fundamental and indispensable rule that the record must not only show error, but also that the appellant was prejudiced thereby. State v. Phillips, 227 N.C. 277, 41 S.E.2d 766; State v. Cogdale, 227 N.C. 59, 40 S.E.2d 467; State v. Perry, 226 N.C. 530, 39 S.E.2d 460; State v. Hart, 226 N.C. 200, 37 S.E.2d 487; State v. Smith, 226 N.C. 738, 40 S.E.2d 363; State v. Bullins, 226 N.C. 142, 36 S.E.2d 915; State v. Walls, 211 N.C. 487, 191 S.E. 232; State

v. Jones, 206 N.C. 812, 175 S.E. 188. As Chief Justice Stacy so well said in the famous case of State v Beal, 199 N.C. 278, 154 S.E. 604, 618: 'The foundation for the application of a new trial is the allegation of injustice arising from error, but for which a different result would likely have ensued, and the motion is for relief upon this ground. Unless, therefore, some wrong has been suffered, there is nothing to relieve against. The injury must be positive and tangible, and not merely theoretical.'

Ordinarily a motion for a continuance on the ground of a want of time for counsel for accused to prepare for trial is addressed to the sound discretion of the trial judge, and his ruling thereon is not subject to review on appeal in the absence of circumstances showing that he has grossly abused his discretionary power. Relevant decisions compel the conclusion that an abuse of discretion has not been made manifest in the case at bar. State v. Henderson, 216 N.C. 99, 3 S.E.2d 357; State v. Godwin, 216 N.C. 49, 3 S.E.2d 347; State v. Whitfield, 206 N.C. 696, 175 S.E. 93; State v. Sauls, 190 N.C. 810, 130 S.E. 848; State v. Burnett, 184 N.C. 783, 115 S.E. 57.

But the prisoner does not rest his contention that prejudicial error occurred on the trial solely on the propositon that the court grossly abused its discretionary power in refusing to continue the trial of the case to a subsequent term. He asserts with much earnestness that the denial of his motion for a continuance deprived him of his constitutional right of representation by counsel. Since the constitutional rights of an accused can not be granted or withheld by the court as a matter of discretion, this claim of the prisoner raises a question of law, which must be considered and determined. State v. Farrell, 223 N.C. 321, 26 S.E.2d 322.

Both the State and Federal Constitutions guarantee to every man the right to be represented in criminal prosecutions by counsel whom he has selected and employed. N.C.Const., Art. I, sec. 11; U.S. Const., Amend. XIV; United States ex. rel. Mills v. Ragen, D.C., 77 F.Supp. 15. Besides, a state court has an inescapable duty to assign counsel to a person unable to employ one when such person is charged with a capital felony. State v. Hedgebeth, 228 N.C. 259, 45 S.E.2d 563; State v. Farrell, supra; Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527.

The right of representation by counsel is not intended to be an empty formality. As the Supreme Cort of Georgia declared in Blackman v. State, 76 Ga. 288: 'This constitutional privilege would amount to nothing if the counsel for the accused are not allowed sufficient time to prepare his defense; it would be a poor boon indeed. This would be 'to keep the word of promise to our ear and break it to our hope.' ' Hence, it has become an established principle of jurisprudence that the constitutional guaranty of the right of counsel requires that the accused and his counsel shall be afforded a reasonable time for preparation of his defense. State v. Farrell, supra; State v. Whitfield, supra; 22 C.J.S., Criminal Law, s 478.

When all is said, this appeal presents this precise problem: Does the record affirmatively show that the presiding judge denied the prisoner and his counsel a reasonable time in which to prepare the defense by ruling him to trial instead of continuing the cause? This question must be answered in the negative. State v. Whitfield, supra; Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377.

As a general rule, continuances are not favored, and ought not to be granted unless the reasons therefor are fully established. Commonwealth v. Millen, 289 Mass. 441, 194...