State v. Rising

• Decision Date: 15 December 1943
• Docket Number: 577.
• Citation: 28 S.E.2d 221,223 N.C. 747
• Parties: STATE v. RISING.
• Court: North Carolina Supreme Court

28 S.E.2d 221

223 N.C. 747

STATE v. RISING.

No. 577.

Supreme Court of North Carolina

December 15, 1943

The defendant was convicted of feloniously breaking and entering the warehouse of the Wilmington Coca Cola Bottling Works, Inc., with the intent of stealing chattels money and valuable securities therein, and of the larceny of said personal property of said bottling works, and from judgment of imprisonment predicated on the verdict the defendant appealed, assigning error.

W L. Farmer, of Wilmington, and W. F. Jones, of Whiteville, for defendant appellant.

Harvey M. McMullan, Atty. Gen., and George B. Patton and Hughes J Rhodes, Asst. Attys. Gen., for the State.

SCHENCK Justice.

The bill of indictment upon which the defendant was convicted was found at the January Term, 1943, of the Superior Court of New Hanover County, and charged that the crime was committed on 13 September 1942. At the January term, upon the motion of the defendant, the case was continued till the next ensuing regular term for the trial of criminal cases which convened in March 1943. Thereafter a special term for the trial of criminal cases was called by His Excellency, the Governor, to convene on 22 February, 1943.

At the February Special Term when the case was called for trial the defendant lodged a motion for a continuance which motion was disallowed, and defendant preserved exception, and stressfully presented this exception both in brief and oral argument on his appeal to this court.

The basis of this motion for continuance was the inability of the defendant to have in court as a witness one Walter C. Dean an expert in fingerprint reading, who was sick in a hospital in Atlanta, Georgia. It was made to appear that the defendant had arranged to have this witness in court at the regular March Term of court, but was unable to have him present at the February Term. It was further made to appear that it was the purpose of the defendant to use the testimony of the absent witness to contradict evidence which the State would offer tending to show that certain fingerprints found on the safe, out of which the chattels and money were taken, were those of the defendant. However, the record discloses that the Solicitor for the State agreed that he would offer no evidence as to fingerprints, if the case were tried at the February Term. In view of this agreement, the courts' refusal to allow the motion for continuance cannot be held for error. The general rule is that the allowance of a motion for continuance is in the sound discretion of the trial judge. State v. Lippard, 223 N.C. 167, 25 S.E.2d 594. However, the defendant contends that this case falls within an exception to the general rule and is governed by the recent case of State v. Farrell, 223 N.C. 321, 26 S.E.2d 322. With this contention we do not concur. Farrell's case is bottomed upon the theory that the defendant was denied his constitutional right of confrontation, which carried with it not only the right to face one's accusers and witnesses with other testimony, but also an opportunity fairly to present one's defense. No such situation is presented by the record in this case. The only purpose for which it appears the expert witness was to be offered was to meet evidence of the State relative to fingerprints found on the safe from which the property was taken. The solicitor's...