State v. Lane , 258 N.C. 349 ( 1962 )

128 S.E.2d 389 (1962) 258 N.C. 349

STATE
v.
Oggie Lee LANE.

No. 653.

Supreme Court of North Carolina.

December 12, 1962.

T. W. Bruton, Atty. Gen., G. A. Jones, Jr., Asst. Atty. Gen., for the State.

Wade H. Penny, Jr., Durham, for defendant, appellant.

PER CURIAM.

The defendant's only assignments of error are to the denial of his motions for a continuance and a mistrial. He contends that his request for a continuance was based on a right guaranteed by the Fourteenth Amendment to the United States Constitution and by Article I, sections 11 and 17 of the North Carolina Constitution.

Ordinarily, whether a case shall be continued rests in the sound discretion of the trial judge. "But when the motion is based on a right guaranteed by the Federal and State Constitutions, 14th Amend. U.S. Const.; Art. I, Sections 11 and 17, N.C. Const., the question presented is one of law and not of discretion, and the decision of the court below is reviewable." State v. Farrell, 223 N.C. 321, 26 S.E.2d 322.

There is no statutory requirement in this jurisdiction that the court must appoint counsel for indigent defendants not accused of capital felonies. If counsel is requested and the circumstances show an apparent necessity for counsel to protect his rights, a defendant has the constitutional right to have counsel assigned him. Otherwise, the propriety of providing counsel for a person accused of an offense less than capital is in the discretion of the trial judge. State v. Davis, 248 N.C. 318, 103 S.E.2d 289.

In this case the trial judge, presumably in recognition of an apparent necessity, of his own motion appointed counsel for defendant. Thereafter, the defendant and his counsel were entitled to a reasonable opportunity in the light of all the attendant circumstances to investigate, prepare, and present his defense. State v. Speller, 230 N.C. 345, 53 S.E.2d 294. "The rule undoubtedly is, that the right of confrontation carries with it, not only the right to face one's ``accusers and witnesses with other testimony' (Section 11, Declaration of Rights, Const.), but also the opportunity fairly to present one's defense." State v. Farrell, supra. On the record in the instant case, we cannot say that the defendant has had this opportunity. He has decided that he wants to assume the risks involved in a new trial. He is entitled to pursue his rights if so minded. In re Taylor, 229 N.C. 297, 49 S.E.2d 749.

For the reasons indicated, it is ordered that there be a new trial.

New trial.