State v. Robinson, 1

• Citation: 283 N.C. 71,194 S.E.2d 811
• Decision Date: 14 March 1973
• Docket Number: No. 1,1
• Parties: STATE of North Carolina v. Restoney ROBINSON.
• Court: United States State Supreme Court of North Carolina

Page 811

194 S.E.2d 811

283 N.C. 71

STATE of North Carolina v. Restoney ROBINSON.

No. 1.

Supreme Court of North Carolina.

March 14, 1973.

Atty. Gen. Robert Morgan and Associate Atty. E. Thomas Maddox, Raleigh, for the State.

James W. Smith, Louisburg, for defendant.

LAKE, Justice.

The defendant's first contention in this Court is that the trial court erred in denying his motion for a continuance, thus depriving him and his counsel of adequate time in which to prepare his defense. Except where such motion is based upon a right guaranteed by the Federal or the State Constitution, it is addressed to the sound discretion of the trial court and the ruling of that court is not subject to review in the absence of an abuse of discretion. State v. Stepney, 280 N.C. 306, 312, 185 S.E.2d 844; State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526; State v. Moses, 272 N.C. 509, 158 S.E.2d 617; State v. Stinson, 267 N.C. 661, 148 S.E.2d 593. A new trial will not be awarded because of the denial of a motion for continuance in the absence of a showing both that there was error in the denial and that the defendant was prejudiced thereby. State v. Moses, supra. Continuances should not be granted unless the reasons therefor are fully established. State v. Stepney, supra.

In the present case the defendant offered no evidence. There is nothing whatever in the record to suggest that he desired to call any witness who was not available to him at the trial. There is nothing in the record, or in his brief in this Court, to support his contention that, in the cross-examination of witnesses for the State, the presentation of evidence in his own behalf or in the preparation for trial, he or his counsel was handicapped by the denial of his motion for a continuance. The defendant was arrested on 20 August 1971 and the indictment was returned by the grand jury on 6 September 1971. The trial was commenced on 6 March 1972 and continued to 10 March 1972, when the jury returned its verdict and sentence was imposed.

The motion for a continance shows upon its face that the defendant was previously tried on the charge of conspiracy to commit murder at the 31 January 1972 session of the superior court and thereafter made a motion before Judge Seay for a speedy trial in this case. Thereupon the judge directed the solicitor to try this case at the earliest possible time. It was docketed for trial on 21 February 1972 and the defendant then stated he was ready for trial, but a continuance was granted upon the motion of the State. Clearly, nothing in this sequence of events indicates an abuse of discretion in denying the defendant's motion for a continuance filed at the commencement of the trial on 6 March 1972.

The motion for continuance did not assert the defendant's need for additional time in order to prepare for trial. It states, as its sole ground, that Judge Seay, having presided at the above mentioned trial of the defendant on the charge of conspiracy to commit murder, 'the defendant feels that it will be prejudicial to his cause to have this case tried before the same trial judge.' A defendant is not entitled, as a matter of law, to a continuance of his trial on a criminal charge for the sole reason that the judge, regularly presiding at the term for which the case is calendared, also presided at an earlier session of the court at which the defendant was tried and convicted upon a different criminal charge. This assignment of error is without merit.

The defendant's next contention in this Court is that the trial court erred in failing to find that the State's witness, Tinsley, lacked sufficient mental capacity to be permitted to testify. It is quite clearly established in this jurisdiction that a challenge to the competency of a witness on the ground of lack of mental capacity is addressed to the discretion of the trial judge. As Justice Sharp, speaking for this Court in State v. Bention, 276 N.C. 641, 174 S.E.2d 793, said: 'Unsoundness of mind does not per se render a witness imcompetent, the general rule being that a lunatic or weak-minded person is admissible as a witness if he has sufficient understanding to apprehend the obligation of an oath and is capable of giving a correct account of the matters which he has seen or heard with respect to the questions at issue. The decision as to the competency of such a person to testify rest largely within the discretion of the trial court.' Accord: State v. Squires, 265 N.C. 388, 144 S.E.2d 49; State v. Cade, 215 N.C. 393, 2 S.E.2d 7; Stansbury, North Carolina Evidence, 2d Ed, § 55; 97 C.J.S. Witnesses § 57b.

The defendant's motion that Tinsley be found incompetent to testify was filed on 6 March 1972 at the opening of the trial. The trial court conducted a voir dire at which defendant's counsel simply stated that Tinsley had been sent to a mental hospital by order of a judge of the district court and that he desired to offer no evidence as to Tinsley's mental capacity, except a transcript of Tinsley's testimony at the above mentioned trial on the charge of conspiracy and certain other documents. These documents included the report of the assistant superintendent of the hospital, at which the examination of Tinsley was conducted and the report of another of the examining physicians at the hospital. The order of Judge Seay denying the motion recites that the court considered all of these documents. The reports of the examining physicians were to the effect that Tinsley was able to plead to the indictment then pending against him and to consult with his counsel in the preparation of his defense. It further appears from the present record that Judge Seay, having presided at the earlier trial, had observed Tinsley as he testified in that action. Under these circumstances, there was no necessity for Judge Seay to interrogate Tinsley again in order to determine his mental capacity to testify. There is no merit in this assignment of error.

The defendant's third contention in this Court is that there was error in admitting into evidence, as exhibits for the State, certain photographic slides, exhibited to the jury by projection upon a screen after the court overruled the defendant's...