State v. Lindsey

• Decision Date: 31 January 1878
• Citation: 78 N.C. 499
• Court: North Carolina Supreme Court
• Parties: STATE v. CLARK LINDSEY and MILES WILLIAMS.

78 N.C. 499

STATE

v.CLARK LINDSEY and MILES WILLIAMS.

Supreme Court of North Carolina.

January Term, 1878.

INDICTMENT for Larceny tried at Fall Term, 1877, of ANSON Superior Court, before Seymour, J.

The exceptions of the defendants and the facts necessary to an understanding of the case are sufficiently stated by Mr. Justice RODMAN in delivering the opinion of this Court. Verdict of guilty. Judgment. Appeal by the defendants.

Attorney General, for the State .

Messrs. T. S. Ashe and Battle & Mordecai for the defendants .

RODMAN, J.

The prisoners were indicted for larceny in stealing a hog.

1. They moved the Court to continue the case, upon an affidavit of the absence of a witness, by whom they expected to prove an alibi. The Judge refused the motion on the ground that there were other witnesses present to prove the same facts. It has been often said, and it is obviously true, that no appeal will lie from an order continuing a cause, not only because such an order must necessarily be to some extent in the discretion of the Judge, but also because it would be impossible to reverse it beneficially. An order refusing a continuance, and requiring a party asking for it to try, seems to stand upon a somewhat different footing as it may be beneficially reversed. The judgment given upon the trial may be final and cases may readily be conceived which if improbable are not impossible, when a refusal to postpone a trial would be a manifest and flagrant injustice and oppression, which it would discredit the Courts to avow an inability to redress. Nevertheless, the doctrine in this State and in many others, seems to be that a refusal to continue a case cannot be assigned as error, any more than a continuance. State v. Duncan, 6 Ire. 98; Com. v. Donovan, 99 Mass. 425.

In some of the States however, it is held that where a refusal to continue is a manifest injustice and wrong, it may be reviewed on appeal. Bryce v. Ross, 49 Ga. 89; Brooks v. Howard, 30 Tex. 278. In all, it is agreed that such an order is to some extent discretionary, and that even though it be matter of legal as distinguished from arbitrary discretion, and so capable of review, it will not be reversed unless it appears that the discretion has been plainly abused. It is unnecessary for us to say that in no case will this Court review a refusal of a Judge below to continue a case, for even if such right of review exists in any case, it does not appear in this case that the discretion of the Judge was in anywise abused. The exception on this ground is not sustained.

2. The defendants then moved for separate trials, which the Judge refused. We think this was a matter of discretion of the same nature with a refusal to continue and the same observations apply to it. Exception not sustained.

3. The defendant, Lindsey, then filed an affidavit for a removal of the case as to him to another County, on the ground that for certain reasons he could not have a fair trial in Anson County. It is unnecessary to state the reasons assigned, because this also was matter of discretion with the Judge of a similar nature to those above mentioned, and this Court could not review the exercise of the discretion, at least, unless it appeared to have been plainly abused, which does not appear here. State v. Hill, 72 N. C. 345; State v. Hall, 73 N. C. 134. Exception not sustained.

4. “On the trial of the case, the State offered in evidence a confession of the defendant Lindsey. The defendant's counsel objected to this and offered to introduce evidence tending to show that the confession was obtained by duress. The State proposed to show that the defendant Lindsey stated that the article alleged to have been stolen was concealed in the woods in a certain place, and that he (Lindsey) went with the State's witness to the place and pointed out the stolen property. The Court held that the question of duress was immaterial and admitted the evidence, limiting it however, to a statement of the fact deposed to by the witness, that in consequence of statements made to him by the defendant, he, the witness, and the defendant went to a certain tree in the woods, and the defendant there pointed out to him the stolen property. The defendant excepted. Similar evidence as regards the other part of the property alleged to have been stolen was offered (and received) with regard to the other defendant Williams.”??

The question made by these exceptions is the same in principle with that decided in State v. Graham, 74 N. C. 646. In that case the...