State v. Sultan

• Decision Date: 18 September 1906
• Parties: STATE v. SULTAN.
• Court: North Carolina Supreme Court

54 S.E. 841

142 N.C. 569

STATE v. SULTAN.

Supreme Court of North Carolina

September 18, 1906

Appeal from Superior Court, Craven County; Long, Judge.

William Sultan was indicted for the illegal sale of intoxicating liquors, and he appeals. Affirmed.

W. D McIver, W. W. Clark, and M. de W. Stevenson, for appellant.

A. D Ward and D. L. Ward, with Atty. Gen., for the State.

CLARK C.J.

The defendant had been arrested in October, 1905, under a justice's warrant for the same illegal act herein charged, but, procuring a continuance, gave the prosecuting witness $135 to depart the state, whereby the proceeding before the justice was dismissed. On April 12, 1906, the witness having returned, the grand jury found a true bill. The defendant had just been tried that day upon another charge of like nature, the illegal sale of intoxicating liquor, and was in court awaiting the verdict therein, when the bill in this case was returned. The defendant had been represented by counsel when before the justice of the peace on this charge and when this bill was returned counsel appeared for him and asked for a continuance. The court told the defendant and his counsel that the case would be called for trial later during the day and gave him time to arrange for counsel and for his defense. He was represented by his original counsel and three others. Affidavits for and against the continuance were filed, and "after a review of all the affidavits the court denied the motion to continue and permitted the defendant, after bill found, to have opportunity to prepare his defense for about four hours before the selection of the jury was begun." The case on appeal further states: "The case was called for trial in the forenoon of one day and terminated at a night session on the day following. The court gave the defendant every opportunity in its power to get his witnesses and to have counsel, in order to insure a trial at this term."

The defendant's claim that he was entitled as a matter of right to a continuance is without foundation. There is no rule of law or practice that when a bill of indictment is found at one term the trial cannot be had till the next. Whether the case should be tried at that term, which is often done and in many cases is required in the public interest and the orderly and economical administration of justice, or whether the case shall go over to the next term, depends upon the nature of each case, of the charge and the evidence, the facility of procuring witnesses, and the legal preparation necessary. In short, "the granting or refusal of a continuance is a matter necessarily in the discretion of the trial judge, and not reviewable--certainly in the absence of gross abuse of such discretion." State v. Dewey, 139 N.C. 560, 51 S.E. 938, and many cases there cited. Abuse of discretion is more apt to be shown in granting continuances and in the dilatory administration of justice. His honor thought this case was one in which there should be a speedy trial. He knew all the attendant circumstances and what was required by the public interest more fully than this court can know them. There is nothing to indicate that the defendant was prejudiced. He knew this charge. He had been arrested on it six months before and had paid the witness to leave. The offense was committed in the very town in which the court was held. It does not appear that any material witness was absent. From the nature of the charge and of the defense, it is not likely that any other witness could have materially added to the testimony of the many witnesses he produced. The trial closed two court days after the bill was found, and any other witness could have been obtained within that time, if needed. The charge was simple and required little preparation on the law, and the defendant was represented by four able counsel. We cannot see that the discretion vested in the trial court as to continuances was abused by the learned and just judge.

The defendant moved to quash the indictment on the ground that it did not appear that any of the witnesses before the grand jury were sworn. The bill was typewritten on one sheet, with no writing on the reverse. A second sheet was attached by paper fasteners, and on that the usual indorsements were written. The judge found as a fact "the two sheets constituted one paper, and that they were fastened together before being sent to the grand jury and treated as one sheet." The indorsements on that sheet set out the names of witnesses, the names of two of whom have a cross-mark opposite them, and below is the usual certificate that "witnesses whose names are marked thus were sworn and examined," signed by the foreman, and the return "a true bill" also signed by him. The only defect alleged is that the blank space after "thus" is not filled in with a cross-mark or check. There is no evidence that witnesses were not sworn. This informality is cured by Revisal 1905, § 3254. Besides, as Ashe, J., said in State v. Hines, 84 N.C. 811, "The omission to designate the witnesses who may have been sworn with a mark was not sufficient to quash the bill. The fact that they were not sworn must have been established by proof offered by the defendant--which was not done in this case." In State v. Hollingsworth, 100 N.C. 537, 6 S.E. 418, it is said that: "The indorsements on the bill form no part of the indictment, and it has been held that the act of 1879 (Code 1883, § 1742), requiring the foreman of the grand jury when the oath is administered by him to mark on the bill the names of the witnesses sworn and examined before the jury, is merely directory, and a noncompliance therewith is no ground for quashing the indictment. State v. Hines, 84 N.C 810. It constitutes neither ground for a motion to quash nor in arrest of judgment. State v. Sheppard, 97 N.C. 401, 1 S.E. 879; State v. Baldwin, 18 N.C. 195; State v. Roberts, 19 N.C. 540; Code...