State v. Payne

• Decision Date: 28 April 1971
• Docket Number: No. 7124SC96,7124SC96
• Citation: 11 N.C.App. 101,180 S.E.2d 379
• Parties: STATE of North Carolina v. Ted Floyd PAYNE, Jr.
• Court: North Carolina Court of Appeals

Page 379

180 S.E.2d 379

11 N.C.App. 101

STATE of North Carolina v. Ted Floyd PAYNE, Jr.

No. 7124SC96.

Court of Appeals of North Carolina.

April 28, 1971.

Atty. Gen. Robert Morgan by Asst. Attys. Gen. William W. Melvin and T. Buie Costen, for the State.

Swain & Fowler by Robert S. Swain, Asheville, for defendant appellant.

CAMPBELL, Judge.

Defendant's first assignment of error is directed at the court's refusal to grant defendant's motion for a continuance. The motion was based on the fact that an essential defense witness was not present in court, although a subpoena had been issued. A motion for a continuance is addressed to the discretion of the court and should not be disturbed absent a showing of an abuse of this discretion. State v. Patton, 5 N.C.App. 164, 167 S.E.2d 821 (1969), cert. denied, 275 N.C. 597 (1969).

Here, no abuse of the trial judge's discretion is shown. The record discloses that the 'essential defense witness' was Dean Henderson, the man that defendant claimed was driving the pick-up truck. Dean Henderson was not present nor was he subpoenaed for the trial in the district court. Both the Sheriff of Madison County and a deputy sheriff testified as to the efforts they made to locate Dean Henderson and serve the subpoena. The deputy sheriff testified that he was unable to locate Dean Henderson and was informed that he was out of the county. The defendant himself testified that:

'* * * It has been over a month or more since I talked to Dean Henderson. There's no use trying to get him here. * * * He said that he didn't want to come to Court. * * *'

'* * * I believe that he might be in Buncombe County with his sister. He spends a week with her now and then. It has been over a month since I have see him.--It's not been that long. He was down on the river fishing one night with his sister, the one that lives in Buncombe County. I really don't know anything about Buncombe, or him. He might spend a week up there with his sister, or a day, I don't know.'

Under these circumstances, no abuse of discretion is shown, and defendant's first assignment of error is overruled.

Defendant next assigns as error the failure of the trial judge to grant defendant's motion for a mistrial where a witness for the State gave a nonresponsive answer on cross examination. As a general rule, a motion for a mistrial is addressed to the discretion of the trial judge, and the ruling thereon is not reviewable on appeal in the absence of a showing of an abuse of discretion. State v. Williams, 7 N.C.App. 51, 171 S.E.2d 39 (1969); State v. Battle, 267 N.C. 513, 148 S.E.2d 599 (1966). Here, the testimony complained of was elicited by counsel for defendant on cross examination; the record does not disclose what the question was that brought about the answer of the witness; and apparently no motion to strike the testimony was made. From these facts, no abuse of discretion can be seen.

We have reviewed defendant's remaining assignments of error and find them to be without merit.

For the reasons stated, in the trial below there was

No error.

BRITT, J., concurs.

GRAHAM, J., dissents.

GRAHAM, Judge (dissenting).

Defendant testified that after he was arrested and placed in the patrol car, the arresting officer pursued a Mercury automobile at high speed for three or four minutes. In instructing the jury the court stated: 'He contends, that is, the defendant, that he had ridden around with the officers and chased other automobiles Or other offenders and that he had ample opportunity to possibly consume alcohol in the interim.' (Emphasis added). In my opinion, the court's inadvertent reference to 'other offenders' constitutes an expression of opinion on the facts in violation of G.S. § 1--180 and is grounds for a new trial. Defendant denied strenuously that he had committed any...