State v. Wellmon

• Decision Date: 04 November 1942
• Docket Number: 363.
• Citation: State v. Wellmon, 222 N.C. 215, 22 S.E.2d 437 (N.C. 1942)
• Parties: STATE v. WELLMON.
• Court: North Carolina Supreme Court

22 S.E.2d 437

222 N.C. 215

STATE v. WELLMON.

No. 363.

Supreme Court of North Carolina

November 4, 1942

The defendant was tried and convicted upon a bill of indictment found at the August Term, 1941, of Iredell County charging him with rape on February 11 1941.The defendant was extradited from the District of Columbia and brought to the common jail of Mecklenburg County on August 4, 1942, and upon it being made to appear to the court that defendant was without counsel, the court on August 5, 1942, assigned him counsel, and on August 9, 1942defendant employed counsel, and was placed on trial on the 11th of August, 1942.Both counsel assigned and privately employed conducted the defense.

From a judgment of death, predicated upon a jury verdict of guilty of the felony of rape as charged in the bill of indictment the defendant appealed, assigning errors.

Hosea V. Price, of Winston-Salem, for defendant-appellant.

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

SCHENCK Justice.

The defendant sets out in his brief but two groups of exceptive assignments of error.We discuss them in the order so set out.

The first group of assignments relate to the refusal of the court to grant the defendant's motion for a continuance, and cannot be sustained.

While there is no exception noted in the record to the court's refusal to grant the motion for a continuance, which would ordinarily preclude any consideration thereof by us, still, since the defendant has been convicted of a capital offense, his contentions as to errors committed at the trial will be reviewed, as well also as the record for errors appearing on its face.State v. Brown,218 N.C. 415, 11 S.E.2d 321.

Our decisions are to the effect that the granting or the denial of a motion for a continuance is a matter within the sound discretion of the trial judge and not the basis for valid exception, unless there has been manifest abuse.It is virtually necessary that this discretion be so vested in the trial judge, else it would be in the power of a defendant to postpone a conviction indefinitely by making affidavits with the requisite matter on the face of them.State v. Riley,188 N.C. 72, 123 S.E. 303;State v. Sauls,190 N.C. 810, 130 S.E. 848;State v. Whitfield,206 N.C. 696, 175 S.E. 93, and cases there cited.

We cannot hold that in denying the motion of the defendant for a continuance the court abused the discretion in it vested.The defendant had been arrested in the District of Columbia upon the charge in the bill of indictment approximately a year before he was finally brought to trial in Iredell County; he sought release in the district by a writ of habeas corpus and had resisted extradition for practically a year; he was finally brought to North Carolina on August 4, 1942, and being without counsel was assigned counsel on August 5, 1942, and employed counsel on August 9, 1942, and was put on trial August 11, 1942, in which trial he was represented by both counsel.His defense was an alibi and the ground urged for a continuance was that there were witnesses in the District of Columbia by whom he could prove that he was in the district at the time the offense with which he was charged was alleged to have been committed.

It was made to appear to the court that the witnesses desired by the defendant had testified in the habeas corpus proceeding in the District of Columbia, where the defendant sought to prove he was elsewhere at the time it was alleged the crime was committed, as to the defendant's whereabouts at that time, and that their testimony had been reduced to writing, and that the solicitor for the State agreed that the transcript of this testimony might be introduced in evidence, without objection, as the depositions of such witnesses.Under these circumstances, especially in view of the fact that the witnesses were beyond the boundaries of the State and not subject to the jurisdiction of its courts, we cannot hold that there was a denial of due process of law by a manifest abuse of the discretion vested in the trial judge by ruling the defendant to trial."It is now a familiar axiom that granting or refusing the continuance of a cause is a matter which rests in the discretion of the trial court and in the absence of gross abuse is not subject to review on appeal".State v. Rhodes,202 N.C. 101, 161 S.E. 722."We do not interfere unless the discretion is abused".Hensley v. McDowell Furniture Co.,164 N.C. 148, 80 S.E. 154, 155.

The second group of assignments of error relate to the admission of evidence to the effect that a witness for the defendant one John Mitchell, whose testimony in the habeas corpus proceeding in the District of Columbia was introduced by the defendant as the witness' deposition, had made statements contrary to the statements made by him in the habeas corpus proceeding.The witness Mitchell's testimony...