State v. Owen

Decision Date19 February 1975
Docket NumberNo. 7429SC638,7429SC638
Citation211 S.E.2d 830,24 N.C.App. 598
PartiesSTATE of North Carolina v. Walter Eli OWEN.
CourtNorth Carolina Court of Appeals

Atty. Gen. Rufus L. Edmisten by Deputy Atty. Gen. R. Bruce White, Jr., and Asst. Atty. Gen. Zoro J. Guice, Jr., Raleigh, for the State.

Edwin R. Groce, Hendersonville, for defendant-appellant.

MORRIS, Judge.

Defendant's first assignment of error is directed to the court's refusal to grant his motion for continuance. It appears that the bill of indictment upon which defendant was tried was returned at the same session of court at which he was tried. He was represented by court-appointed counsel who was appointed some five days after the warrant was served on defendant and approximately three weeks prior to trial. Defendant was under bond to appear in court on 11 February 1974 and remain until released or discharged. On Monday, 18 February 1974, the solicitor called defendant's case for trial after the grand jury had returned a true bill. The court continued the case until later in the week for the benefit of defendant's counsel. When it was again called, counsel made an oral motion for continuance until the next session of court. He gave no reason other than that the bill of indictment had just been returned at that session and the case was not on the calendar. He did not reduce his motion to writing and give other reasons therefor. There is no showing that any witnesses for defendant would not be available who could and would be available at the next session. There is no statement by counsel that he had not had adequate time to prepare defendant's defense.

The mere fact that a true bill is returned and the case is called for trial at the same session does not entitle defendant to a continuance to the next session. State v. Gay, 273 N.C. 125, 159 S.E.2d 312 (1968).

'Motions to continue are addressed to the sound discretion of the trial judge and his rulings thereon will not be upset on appeal absent a showing of such abuse of discretion as would deprive the defendants of a fair trial. (Citations omitted.)' State v. Shue, 16 N.C.App. 696, 193 S.E.2d 481 (1972). Here defendant has shown no abuse of discretion.

Defendant next contends the court erred in failing to grant his motion for judgment as of nonsuit made at the close of the State's evidence and renewed at the end of all the evidence. In order to reach a conclusion as to this question, we must examine the evidence in the light of recent opinions of the Supreme Court of North Carolina. The State's evidence pertinent to the questions raised on this appeal would tend to show the following: At the time of the incident complained of, the prosecuting witness, Naman Arthur Wallin, hereinafter referred to as 'Wallin', was visiting in the home of his brother-in-law, Howard McElreath, hereinafter referred to as 'McElreath'. McElreath lived on North Mills River in Henderson County on property owned by him adjacent to the Pisgah National Reserve. At about 1:15 a.m. on 26 December 1973, Wallin, in response to a call from McElreath, went with McElreath out in his driveway, which was about 200 yards from the house. They separated, McElreath going 'on up the main road' and Wallin remaining in the driveway. McElreath, a special deputy sheriff, had noticed a car go down the road and immediately come back. He had heard a .30 caliber gun fire and immediately got up to investigate. He asked Wallin to go with him, and when they got outside, he asked Wallin to stay at the intersection of the driveway and the public road. In about three minutes, Wallin heard someone coming down the road and called to McElreath. The person who was approaching answered 'Yes', and Wallin thought it was McElreath. He looked down the road and felt 'something poke' him in the back. The defendant said 'Hell, no, this is not Howard, drop your gun and don't say a word or I'll blow you in two,' and 'I have just killed deer up there in the fields and they have got these roads sealed off and you are my ticket out of here.' Wallin further testified that he went with defendant because he was afraid not to go because defendant had told him he, defendant, would kill him, Wallin. Defendant had a .44 Magnum rifle. He ordered Wallin to go up over by a house and then 'cut down in another road' which was about 75 yards from where Wallin first encountered defendant. Wallin's nephew lived in the house by which they went, and, as they were going by, the nephew turned on the outside lights. Defendant told Wallin's nephew to turn off the lights or he would kill Wallin. The lights were turned off, and defendant and Wallin continued walking. Defendant instructed Wallin that they would be walking a while because they were going down on the main highway where he would rendezvous with his pick up man. Wallin's guess was that they walked a half mile. When they got to the highway, defendant made Wallin lie down in a gutter, and held the gun on him telling him that if he wished to see another Christmas day, he 'had better cooperate with him and do what he said.' Defendant kept Wallin in the ditch about a half hour until he saw car lights approaching. He said that would be his pick up man and instructed Wallin to march on ahead of him; that he, defendant, would get in the car, drive on and leave Wallin's gun at the little fruit stand. The car approaching contained one Owen, and his car was followed by McElreath in his car. When Owen's car stopped, McElreath saw Wallin come over the ditch bank followed by defendant. Defendant started to Owen's car, and McElreath approached him. Defendant drew his gun on McElreath and one Renegar, the County Game Protector who had joined McElreath. Both tried to talk with defendant and at that time, Wallin took the chance to jump behind Owen's car to safety. The defendant had his gun cocked, pointing it at McElreath and Renegar as he backed down the road. He told them if they continued to follow him he would shoot them. After he had backed down the road about a quarter of a mile, two Henderson County deputies sheriff came up. As they started out of their car, defendant was distracted, stumbled, and Renegar was able to grab his gun. He, McElreath, and the two deputies disarmed defendant. One of the deputies unloaded defendant's gun. There were 12 shells in his gun and 17 shells in defendant's pocket.

Defendant contends that the evidence is insufficient under State v. Dix, 282 N.C. 490, 193 S.E.2d 897 (1973), and State v. Roberts, 286 N.C. 265, 210 S.E.2d 396 (1974), to support a verdict of guilty of kidnapping.

In State v. Ingland, 278 N.C. 42, 178 S.E.2d 577 (1971), Justice Huskins, speaking for a unanimous Court, approved this definition of false imprisonment, a common law crime for which North Carolina has no statute:

"Any unlawful restraint of one's liberty, whether in a common prison, in a private house, on the public streets, in a ship, or elsewhere, is in law, a false imprisonment. . . . The offense is a misdemeanor at common law.' (Citations omitted.)' Supra, at 51, 178 S.E.2d at 583.

In distinguishing the crime of false imprisonment from the crime of kidnapping, the Court said:

'On the other hand, common-law kidnapping contemplates, in addition to unlawful restraint, a carrying away of the person detained. State v. Harrison, 145 N.C. 408, 59 S.E. 867 (1907), quotes Bishop's definition of kidnapping as 'false imprisonment aggravated by conveying the imprisoned person to some other place.' See also State v. Lowry, Supra. Blackstone and the early English authorities held that a carrying away to Another country was necessary to constitute kidnapping. The asportation requirement has now been relaxed, however, so that Any carrying away is sufficient. The distance the victim is carried is immaterial. State v. Lowry, Supra.' State v. Ingland, supra, at 51, 178 S.E.2d at 583.

In State v. Dix, supra, Justice Sharp, writing for the majority, disapproved the Use of the statement in State v. Ingland, supra, '.. . Any carrying away is sufficient. The distance the victim is carried is immaterial', saying that it was first used in this State as dictum in State v. Lowry, 263 N.C. 536, 139 S.E.2d 870, appeal dismissed sub nom., 382 U.S. 22, 86 S.Ct. 227, 15 L.Ed.2d 16 (1965). Justice Sha...

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4 cases
  • State v. Boyd
    • United States
    • North Carolina Court of Appeals
    • August 7, 2012
    ...in determining whether the crime of kidnapping has been committed.”). Therefore, the State is correct in citing State v. Owen, 24 N.C.App. 598, 211 S.E.2d 830 (1975), for the proposition that moving a victim a short distance could constitute kidnapping in a proper case. This, however, is no......
  • State Carolina v. Bryant Lamont Boyd.
    • United States
    • North Carolina Court of Appeals
    • August 2, 2011
    ...in determining whether the crime of kidnapping has been committed.”). Therefore, the State is correct in citing State v. Owen, 24 N.C.App. 598, 211 S.E.2d 830 (1975), for the proposition that moving a victim a short distance could constitute kidnapping in a proper case. This, however, is no......
  • State v. Pratt
    • United States
    • North Carolina Court of Appeals
    • September 3, 2002
    ...Neuman and Hinson were unlawfully confined, restrained and removed from one place to another without consent. See State v. Owen, 24 N.C.App. 598, 603, 211 S.E.2d 830, 834 (stating that "the removal of the victim only a few feet could be sufficient to constitute kidnapping"), cert. denied, 2......
  • State v. Owen
    • United States
    • North Carolina Supreme Court
    • May 6, 1975
    ...Jr., Asst.Atty.Gen., for the State. Petition for writ of certiorari by defendant to review the decision of the Court of Appeals, 24 N.C.App. 598, 211 S.E.2d 830. ...

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