State v. Kirkman

Annotate this Case

114 S.E.2d 633 (1960)

252 N.C. 781

STATE v. Earl Gilbert KIRKMAN, William Leon Campbell, George Clifton Moore and James C. Pennington.

No. 722.

Supreme Court of North Carolina.

June 10, 1960.

*634 T. W. Bruton, Atty. Gen., and H. Horton Rountree, Asst. Atty. Gen., for the State.

George A. Younce, Greensboro, for defendant, appellant.

PER CURIAM.

Defendant Pennington assigns as error the denial of his motion for a continuance of his trial for the term. The granting or denial of this motion rested in the sound discretion of the trial judge, and his ruling will not be disturbed on appeal, except for abuse of discretion or a showing defendant has been deprived of a fair trial. State v. Ipock, 242 N.C. 119, 86 S.E.2d 798; State v. Gibson, 229 N.C. 497, 50 S.E.2d 520. This assignment of error is overruled, for the reason that defendant has not shown an abuse of discretion on the part of the trial judge, or that he has been deprived of a fair trial.

Defendants Campbell and Kirkman testified as witnesses for the State. After the State had rested its case, and before defendant Pennington made a motion for judgment of nonsuit, the solicitor for the State moved to reopen the State's case on the ground that a State's witness desired to make an additional statement. The court in its discretion allowed the motion. Whereupon, the solicitor recalled the defendant Campbell who gave further testimony. Defendant Pennington assigns this as error. The motion was addressed to the sound discretion of the trial judge, and there is nothing in the record to suggest any abuse of discretion in this respect. State v. Satterfield, 207 N.C. 118, 176 S.E. 466; State v. Hobbs, 216 N.C. 14, 3 S.E.2d 431. This assignment of error is overruled.

There is no merit in defendant's assignment of error to the court's denial of his motion for judgment of nonsuit made at the close of the State's case: defendant Pennington offered no evidence. The State's evidence was sufficient to carry the case to the jury.

We have carefully considered defendant's numerous assignments of error in respect to the evidence and the charge of the court, and defendant has not shown that any one of them is sufficiently prejudicial to warrant a new trial. All are overruled.

When defendant Pennington engaged in the criminal conspiracy with defendants Kirkman, Campbell and Moore, he forfeited his independence and jeopardized his liberty, for, by agreeing with them to engage in an unlawful enterprise, he placed his safety and freedom in the hands of each and every member of the conspiracy, and must abide the consequences of his acts. State v. Ritter, 197 N.C. 113, 147 S.E. 733; State v. Smith, 237 N.C. 1, 74 S.E.2d 291.

In the trial below, we find

No error.