State v. Campbell

188 S.E.2d 558 (1972)

14 N.C. App. 596

STATE of North Carolina v. Kenneth CAMPBELL (71CR3754) and (71CR3756).

No. 7211SC336.

Court of Appeals of North Carolina.

May 24, 1972.

*559 Atty. Gen. Robert Morgan by Henry E. Poole, Associate Atty. Gen., for the State.

Woodall, McCormick & Arnold by Edward H. McCormick, Lillington for defendant appellant.

BRITT, Judge.

By his first assignment of error defendant contends that the trial court erred in limiting defense counsel's jury argument to thirty minutes. The assignment of error is sustained.

The record reveals that before jury arguments began defendant's attorney requested one hour within which to argue the three felony cases against his client. The record further reveals that the court "in its discretion sets a time limit of thirty minutes to each side to which the defendant objects and excepts."

Article IV, Sec. 13(2) of the Constitution of North Carolina provides in pertinent part as follows: ". . . . . The General Assembly may make rules of procedure and practice for the Superior Court and District Court Divisions . . . . No rule of procedure or practice shall abridge substantive rights or abrogate or limit the right of trial by jury. If the General Assembly should delegate to the Supreme Court the rule-making power, the General Assembly may, nevertheless, alter, amend, or repeal any rule of procedure or practice adopted by the Supreme Court for the Superior Court or District Court Divisions."

It is readily apparent from reading this section of our State Constitution that the people of North Carolina, with certain reservations, have vested in their elected senators and representatives in The General Assembly the final word on rules of procedure and practice in the trial courts of our State. The General Assembly has seen fit to enact G.S. § 84-14 which provides in pertinent part as follows: "In all trials in the superior courts there shall be allowed two addresses to the jury for the State or plaintiff and two for the defendant, except in capital felonies, when there shall be no limit as to number. The judges of the superior court are authorized to limit the time of argument of counsel to the jury on the trial of actions, civil and criminal as follows: To not less than one hour on each side in misdemeanors and appeals from justices of the peace; to not less than two hours on each side in all other civil actions and in felonies less than capital; in capital felonies, the time of argument of counsel may not be limited otherwise than by consent, except that the court may limit the number of those who may address the jury to three counsel on each side . . ."

In his brief the Attorney General contends that while the court in the instant case may have technically violated G.S. § 84-14, the violation was not prejudicial to the defendant and was a harmless error. We cannot agree with this contention. No doubt it is true that many jury arguments are too lengthy but this court has nothing in the record to show that defendant's counsel in the instant case was able to fully argue his contentions in the thirty minutes allowed by the trial judge. Defendant was tried on three separate bills of indictment, charging entirely different offensesone of them on a date thirteen days later than the others. The General Assembly, pursuant to authority clearly given it by the constitution, vested defendant with certain rights and they must be respected. It would appear that this is a right that a defendant may waive and in many instances the *560 length of jury arguments are limited by agreement, but in the absence of waiver or agreement a defendant is entitled to the rights provided by our constitution and statutes. The error entitles defendant to a new trial.

Defendant assigns as error the failure of the trial court to allow his timely made motions to dismiss the possession charges against him. We think the evidence was sufficient in each case to survive the motions.

We have considered the other assignments of error brought forward and discussed in defendant's brief but find them to be without merit.

For the reasons stated, defendant is awarded a

New trial.

PARKER and HEDRICK, JJ., concur.