State v. Moses

158 S.E.2d 617 (1968)

272 N.C. 509

STATE v. Willie Lee MOSES.

No. 272-S.

Supreme Court of North Carolina.

January 12, 1968.

*618 T. W. Bruton, Atty. Gen., and Harry W. McGalliard, Deputy Atty. Gen., for the State.

T. O. Stennett, Charlotte, for defendant.

PER CURIAM:

Defendant's only assignment of error is that the court erred in overruling his "motion for a continuance in all cases called for trial." The judgment of nonsuit in case No. 50-115, the only felony charge, eliminated the exception to the failure of the court to continue that case. Defendant, while conceding that he had received notice a week prior to the beginning of the term that the five specific misdemeanors charged against him were calendared for trial on 8 August 1967, contends nevertheless "that a constitutional question was brought into play in the denial of the motion for a continuance."

Defendant makes no contention herenor did he at the trialthat he was *619 taken by surprise when the five indictments were returned against him. Such an assertion could not have been maintained for the indictments were based upon warrants issued by the Mecklenburg County Recorder's Court, where defendant had demanded a jury trial. This demand resulted in the transfer of the cases to the Superior Court, where trial could not have been had upon the warrants. State v. King, 270 N.C. 791, 154 S.E.2d 906. It is also noted that defendant makes no claim herenor did he assert in the lower courtthat he and his counsel needed time to prepare his defense or to procure witnesses in his behalf. When he made his oral motion for a continuance, defendant did not attempt to support it by affidavit as contemplated by G.S. § 1-176. State v. Gibson, 229 N.C. 497, 50 S.E.2d 520. Indeed, defendant has never suggested any reason whatever for the requested postponement of the trial of the five misdemeanor charges except that he should not have been ruled to trial on the same day the indictments were returned. In many instances this would undoubtedly be a valid contention for "the constitutional guaranty of the right of counsel requires that the accused and his counsel shall be afforded a reasonable time for the preparation of his defense." State v. Gibson, supra at 501, 50 S.E.2d at 523. Accord, State v. Phillip, 261 N.C. 263, 134 S.E.2d 386.

In this case, however, no facts appear which would except defendant's motion for a continuance from the general rule that a motion for a continuance is addressed to the sound discretion of the trial judge, whose ruling thereon is subject to review only in case of manifest abuse. 2 Strong, N.C. Index 2d, Criminal Law § 91 (1967). Whether a defendant bases his appeal upon an abuse of judicial discretion, or a denial of his constitutional rights, to entitle him to a new trial because his motion to continue was not allowed, he must show both error and prejudice. State v. Phillip, supra. Defendant here has shown neither.

No error.