State v. Ipock

86 S.E.2d 798 (1955)

242 N.C. 119

STATE v. Nolan M. IPOCK.

No. 290.

Supreme Court of North Carolina.

April 13, 1955.

*799 Charles L. Abernethy, Jr., New Bern, for defendant-appellant.

Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., for the State.

*800 HIGGINS, Justice.

The defendant's assignment of error No. 1A is to the refusal of the court to continue the case on the ground of defendant's illness. The only evidence presented on the motion to continue was the certificate of Dr. Duffy who advised "home care," but does not say the defendant is unable to stand trial or that a trial would endanger his health. Granting or denying a motion for continuance rests in the sound discretion of the presiding judge and his decision will not be disturbed on appeal, except for abuse of discretion or a showing the defendant has been deprived of a fair trial. State v. Birchfield, 235 N.C. 410, 70 S.E.2d 5; State v. Hackney, 240 N.C. 230, 81 S.E.2d 778; State v. Culberson, 228 N.C. 615, 46 S.E.2d 647; State v. Gibson, 229 N.C. 497, 50 S.E.2d 520. No abuse of discretion is shown.

Assignments of error Nos. 15, 24 and 25 relate to the refusal of the court to grant the motions for nonsuit, to set aside the verdict, and to arrest the judgment. The evidence made out a case for the jury and no defect appears upon the face of the record. The assignments are without merit.

During the course of the trial the defendant sought to introduce evidence as to his physical condition the day before and on the day of the trial. Upon objection, the evidence was excluded. The defendant sought to argue to the jury that the defendant's illness accounted for his inability to go upon the stand and testify in his own defense. The court interrupted counsel and cautioned the jury not to consider the argument. The testimony as to defendant's physical condition at the trial in September, 1954, could have no bearing on the issue before the jury as to whether the defendant operated a truck upon the public highway on 2 February 1953, while he was under the influence of liquor. The evidence was properly excluded and the instruction to the jury not to consider the argument was warranted. State v. Kiziah, 217 N.C. 399, 8 S.E.2d 474; State v. Page, 215 N.C. 333, 1 S.E.2d 887.

The court's charge as to what constitutes reasonable doubt is in accord with the decision of this Court in State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133, and cases there cited. Assignments of error Nos. 18, 19 and 23 relating thereto are without merit.

The record leaves the impression the defendant's principal effort in the trial was directed not to the question of his guilt or innocence of the charge, but to his physical condition at the time of the trial. Two officers testified the defendant was intoxicated at the time he drove the truck upon the public highway and that a partially filled bottle of whisky was in the seat of the truck. There was no evidence to the contrary. That the jury believed the officers does not present a question for review on appeal.

No error.

BARNHILL, C. J., took no part in the consideration or decision of this case.