State v. Ferebee

146 S.E.2d 666 (1966)

266 N.C. 606

STATE v. Percy Bell FEREBEE.

No. 3.

Supreme Court of North Carolina.

March 2, 1966.

*668 Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Bernard A. Harrell for the State.

W. R. Francis, Waynesville, Thad D. Bryson, Jr., Bryson City, and Felix E. Alley, Jr., Waynesville, for defendant appellant.

BOBBITT, Justice.

Defendant's purported assignments of error are not based on exceptions duly noted in apt time and are ineffectual. 1 Strong, N.C. Index, Appeal and Error § 19.

Defendant's brief asserts the "Question Involved" is: "Did the Court, in refusing to continue this case to a subsequent term, deprive the defendant of constitutional rights to which he was entitled?"

"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. Ipock, 242 N.C. 119, 86 S.E.2d 798; 1 Strong, N.C. Index, Criminal Law § 86. Defendant has failed to show abuse of discretion or that he has been deprived of a fair trial.

"In the application of this fundamental principle (the right of confrontation) it has been held that in a capital felony the prisoner cannot waive his right to be present at any stage of the trial. Not only has he a right to be present; he must be present. State v. Kelly, 97 N.C. 404, 2 S.E. 185; State v. Dry, 152 N.C. 813, 67 S.E. 1000. In felonies less than capital the right to be present can be waived only by the defendant himself (State v. Jenkins, 84 N.C. [812] 813), but in misdemeanors the right may be waived by the defendant through his counsel with the consent of the court (State v. Dry, supra; State v. Cherry, 154 N.C. 624, 70 S.E. 294)." State v. O'Neal, 197 N.C. 548, 149 S.E. 860; State v. Hartsfield, 188 N.C. 357, 124 S.E. 629; Harriet Cotton Mills v. Local No. 578, 251 N.C. 218, 228-229, 111 S.E.2d 457. True, a sentence imposing corporal punishment may not be pronounced against a defendant in his absence. State v. Brooks, 211 N.C. 702, 191 S.E. 749, and cases cited. Here, the judgment pronounced imposes no active or suspended sentence of corporal punishment. The fine and costs are collectible as provided in G.S. § 15-185. See State v. Bryant, 251 N.C. 423, 111 S.E.2d 591.

Since defendant has failed to show error, Judge Clarkson's judgment is affirmed.

Affirmed.

MOORE, J., not sitting.