State v. Howes

198 S.E.2d 86 (1973)

19 N.C. App. 155

STATE of North Carolina v. Joseph HOWES.

No. 7328SC434.

Court of Appeals of North Carolina.

August 1, 1973.

*87 Atty. Gen., Robert Morgan, by Asst. Atty. Gen. Charles M. Hensey, Raleigh, for the State.

Floyd D. Brock, Asheville, for the defendant.

BROCK, Judge.

Defendant assigns as error the denial of his motion for a continuance. The record on appeal reflects the following: Mr. Floyd D. Brock was appointed on 19 September 1972 to represent defendant (almost three months prior to trial), and Mr. Brock conferred with defendant from time to time after the appointment. On the day on which defendant was scheduled to be tried, he advised his attorney for the first time that he had three additional witnesses he wanted for the trial. The only witness defendant had previously mentioned (Jack Messer) was served with subpoena on 8 December 1972, but failed to appear for trial. A capias instanter was issued by the court to bring the witness Messer before it, but the Sheriffs' Departments of Buncombe and Haywood Counties were unable to locate him at his residence or place of employment. According to defendant's testimony Mr. and Mrs. Rell, with whom defendant was riding at the time of his arrest, were with defendant at all times that the witness Messer was with him. Mr. and Mrs. Rell testified that defendant was with them at all times from about 9:00 p. m. until 4:00 a. m., except for a brief period about 2:00 a. m. when they traveled from Red's Tavern to the Dinner Bell Restaurant. Defendant, according to his own testimony, traveled alone to the Dinner *88 Bell Restaurant. It appears, therefore, that Messer's testimony merely would have been cumulative.

As for the three additional witnesses requested by defendant on the day of his trial, defendant has not shown that their testimony would have been relevant or competent in his trial. Nowhere in defendant's testimony did he mention that the three witnesses were in his presence during the night and morning involved. He did not undertake to show the nature of the facts he proposed to establish by their testimony. He did not offer an explanation as to why he waited until the day of his trial to advise counsel of the three witnesses' names for the first time.

It is well settled that a motion for continuance is ordinarily addressed to the discretion of the trial court and its ruling will not be disturbed absent a showing of abuse of discretion. On this record, defendant has failed to show an abuse of discretion by the trial judge.

No error.

HEDRICK and VAUGHN, JJ., concur.