State v. Hardin

201 S.E.2d 74 (1973)

20 N.C. App. 193

STATE of North Carolina v. William T. HARDIN.

No. 7326SC588.

Court of Appeals of North Carolina.

December 12, 1973.

*75 Atty. Gen. Robert Morgan, by Asst. Atty. Gen. Walter E. Ricks, III, Raleigh, for the State.

Lacy W. Blue, Charlotte, for defendant appellant.

MORRIS, Judge.

Defendant's sole assignment of error is to the trial court's overruling the motion to dismiss the indictment for lack of a speedy trial without making any findings of fact and conclusions of law.

In North Carolina, there is no statute of limitations barring the prosecution of a felony. State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969); State v. Burnett, 184 N.C. 783, 115 S.E. 57 (1922). G. S. § 15-10 merely provides that under certain circumstances the State must release from custody a defendant who has not been speedily tried. State v. Johnson, supra. "The constitutional guarantee of a speedy trial, therefore, imposes the only limitation upon purposeful and oppressive delays between the date of a felonious offense *76 and the commencement of the prosecution." State v. Johnson, supra, at 272, 167 S.E.2d at 279.

The decisions of the Supreme Court of this State make it clear that the constitutional right to speedy trial is violated only when the delay is an undue delay, negligently or arbitrarily delayed by the State, or oppressive delay. State v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972); State v. Johnson, supra.

"The accused has the burden of showing that the delay was due to the State's wilfulness or neglect. Unavoidable delays and delays caused or requested by defendant do not violate his right to a speedy trial. Further, a defendant may waive his right to a speedy trial by failing to demand or to make some effort to obtain a speedier trial. State v. Ball, 277 N.C. 714, 178 S.E.2d 377; State v. Hollars, 266 N.C. 45, 145 S.E.2d 309; State v. Lowry and State v. Mallory, 263 N.C. 536, 139 S.E.2d 870. The constitutional right to a speedy trial prohibits arbitrary and oppressive delays by the prosecution. State v. Johnson, 275 N.C. 264, 167 S.E.2d 274." State v. Spencer, supra, at 124, 187 S.E.2d at 781.

The reason for the delay in the prosecution in the present case is clear from the record. The prosecuting witness was hospitalized for a period of two years as a result of wounds inflicted by defendant. In order to testify, the witness was brought to court in an ambulance only two days after his release from the hospital, and his testimony was taken while he was on a stretcher. We can see no manner in which the delay in this case can be termed arbitrary or negligent on the part of the State. We hold that under the circumstances defendant was not denied his constitutional right to a speedy trial.

No error.

PARKER and VAUGHN, JJ., concur.