State v. SmathersAnnotate this Case
214 S.E.2d 112 (1975)
287 N.C. 226
STATE of North Carolina v. Charlie SMATHERS.
Supreme Court of North Carolina.
May 6, 1975.
*114 Rufus L. Edmisten, Atty. Gen., and Roy A. Giles, Jr., Asst. Atty. Gen., Raleigh, for the State.
John I. Jay, Waynesville, and I. C. Crawford, Asheville, for defendant appellant.
SHARP, Chief Justice.
Appellant's brief does not purport to comply with Rule 28 of the Rules of Practice in the Supreme Court of North Carolina. However, since defendant appeals a life sentence, we refrain from dismissing the appeal and consider his only assignment of error which suggests merit. This assignment is that "the trial court erred in not allowing defendant's motion for a continuance."
The rule is firmly established that ordinarily a motion for continuance is addressed to the sound discretion of the trial judge and his ruling is not subject to review on appeal in the absence of gross abuse. But when the motion is based on a right *115 guaranteed by the Federal and State Constitutions, the question presented is one of law and not of discretion, and the decision of the court below is reviewable.
"The authority to rule a defendant to trial in a criminal prosecution attaches only after the constitutional right of confrontation has been satisfied. The question is not one of guilt. Nor does it involve the merits of the defense he may be able to produce. It is whether the defendant has had an opportunity fairly to prepare his defense and present it. . . . The law must first say where the line of demarcation is and on which side the case falls. Constitutional rights are not to be granted or withheld in the court's discretion.
"`The rule undoubtedly is, that the right of confrontation carries with it, not only the right to face one's "accuser and witnesses with other testimony" [N.C.Const. art. I, § 23 (1971)], but also the opportunity fairly to present one's defense.'" State v. Farrell, 223 N.C. 321, 326-327, 26 S.E.2d 322, 325 (1943). See State v. Cradle, 281 N.C. 198, 188 S.E.2d 296 (1972); State v. Lane, 258 N.C. 349, 128 S.E.2d 389 (1962).
The specific question presented is whether the denial of defendant's motion for a continuance deprived him of his rights under N.C.Const. art. I, § 23 (1971) to be informed of the accusation against him and to confront his accusers and the witnesses against him with other testimony.
We note first that the warrant which Burgess swore out on 29 June 1974ten days after the alleged burglarycharged that between midnight and 1:00 a. m. on 19 June 1974 defendant feloniously broke and entered the occupied Burgess dwelling "with the intent to commit a felony therein, To-Wit, threatening to kill the said Marion Burgess." (Emphasis added.) The warrant did not charge that the breaking and entering alleged was with the intent to commit larceny. We also note that at the "Probable Cause Hearing" the judge's finding was that "sufficient evidence has been presented to establish probable cause that a crime has been committed." (Emphasis added.)
Defendant correctly contends that the warrant which charged him with breaking and entering for the purpose of threatening to kill Marion Burgess charged only a misdemeanor under G.S. § 14-54(b); that a mere oral threat to kill, unaccompanied by any assault, is neither a felony nor a crime. In his brief he asserts he received his first notice that he was charged with breaking and entering with intent to commit larceny when the indictment was returned on the day of the trial; that prior thereto he had reasonably believed he would be tried in the Superior Court upon a misdemeanor charge; that instead, he was tried for a felony which, until 8 April 1974, had been a capital crime; and that he was forced into a trial for which he was not allowed sufficient time to prepare his defense.
Counsel's statement to the court in support of his motion to continue the trial because of the absence of witnesses to corroborate defendant's alibi was lacking in specificity and unsatisfactory. See State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974). Neither the names of the witnesses nor the substance of the testimony they were expected to give was divulged. The only information imparted was that they were residents of South Carolina. For that reason alone elementary precaution would have required that they be subpoenaed on the day they were in the jurisdiction of the court.
Ordinarily the absence of witnesses upon whom a subpoena could have been served will not constitute a ground for continuance. However, as counsel perceived when this case was called for trial, it involved "a very serious matter, which could lead to his [defendant's] imprisonment for life." We also note: (1) The solicitor did not question counsel's statement that witnesses had come from South Carolina "at the beginning of the week". (2) Defendant himself was in jail and dependent upon others to subpoena his witnesses. (3) The record discloses counsel's knowledge that *116 the witnesses were at court at the beginning of the week but it does not show that defendant knew of their presence. (4) Defendant was tried on Thursday and Friday of the first week of a two-week session.
Under the circumstances, as disclosed by this record, we hold that defendant has not had an opportunity fairly to prepare and present his defense. Therefore, the judgment below is vacated and a new trial is ordered.