State v. Moffitt

• Decision Date: 26 May 1971
• Docket Number: No. 7118SC200,7118SC200
• Citation: State v. Moffitt, 11 N.C.App. 337, 181 S.E.2d 184 (N.C. App. 1971)
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Claude Frank MOFFITT.

Page 184

181 S.E.2d 184

11 N.C.App. 337

STATE of North Carolina v.Claude Frank MOFFITT.

No. 7118SC200.

Court of Appeals of North Carolina.

May 26, 1971.

Atty. Gen. Robert Morgan by Trial Atty. H. A. Cole, Raleigh, for the state.

Wallace C. Harrelson, Public Defender, Eighteenth Judicial District by R. D. Douglas, III, Greensboro, for defendantappellant.

GRAHAM, Judge.

Defendant assigns as error the court's refusal to grant his motion for a continuance and also the court's refusal to allow his motion to quash the bill of indictment on the ground he was not afforded his constitutional right to a speedy trial.These assignments of error are overruled.

Defendant's motion for a continuance was grounded upon the fact the public defender who was first assigned as defense counsel was involved in another court trial and unable to represent defendant on the day this case was calendared for trial.It affirmatively appears, however, that another attorney from the public defender's staff assumed responsibility for this case on the day before it was tried, and that he adequately represented defendant throughout the trial and on this appeal.Counsel admits that he had opportunity to confer with defendant before trial, and that he also conferred with the public defender who made available to him the results of the prior investigation and preparation.Counsel is unable to point out any specific manner in which a continuance would have aided him in the presentation of defendant's defense.

A motion for a continuance is addressed to the sound discretion of the trial judge, and his ruling thereon is not reviewable in the absence of an abuse of discretion.State v. Stinson, 267 N.C. 661, 148 S.E.2d 593.No abuse of discretion has been shown.

Approximately six months elapsed between defendant's arrest and his trial.The record suggests that during a portion of this time defendant was confined in jail in another county awaiting trial on other charges.Suffice to say defendant has failed to show that the delay of six months was so unreasonable as to create a reasonable possibility of prejudice, or that the delay was deliberately and unnecessarily occasioned by the State.SeeState v. Johnson, 275 N.C. 264, 167 S.E.2d 274.

Defendant attacks the sufficiency of the indictment, contending that it fails to allege that the instrument was apparently capable of effecting a fraud.The indictment alleges that the instrument was a bank check and sets out its contents in full.This sufficiently shows the nature of the instrument and that it was capable of effecting a fraud.

Finally, defendant contends that the court erred in permitting testimony relating to an out-of-court photographic identification.We find no objection in the record to the in-court identification of defendant by the same witness who testified that he had made an out-of-court photographic identification.Thus no question is presented on this appeal as to whether the in-court identification was tainted by an unlawful out-of-court photographic identification.The question raised is simply whether the evidence of the out-of-court photographic identification was properly admitted into evidence over objection.

When a defendant objects to evidence of an out-of-court photographic or corporal identification, a Voir dire should be conducted and all relevant facts should be elicited and all factual questions determined.State v. Accor and State v. Moore, 277 N.C. 65, 175 S.E.2d 583.

Here, the court...