STATE of North Carolina
v.
Restoney ROBINSON.
No. 1.
Supreme Court of North Carolina.
March 14, 1973.*814 Atty. Gen. Robert Morgan and Associate Atty. E. Thomas Maddox, Raleigh, for the State.
James W. Smith, Louisburg, for defendant.
LAKE, Justice.
The defendant's first contention in this Court is that the trial court erred in denying his motion for a continuance, thus depriving him and his counsel of adequate time in which to prepare his defense. Except where such motion is based upon a right guaranteed by the Federal or the State Constitution, it is addressed to the sound discretion of the trial court and the ruling of that court is not subject to review in the absence of an abuse of discretion. State v. Stepney, 280 N.C. 306, 312, 185 S.E.2d 844; State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526; State v. Moses, 272 N.C. 509, 158 S.E.2d 617; State v. Stinson, 267 N.C. 661, 148 S.E.2d 593. A new trial will not be awarded because of the denial of a motion for continuance in the absence of a showing both that there was error in the denial and that the defendant was prejudiced thereby. State v. Moses, supra. Continuances should not be granted unless the reasons therefor are fully established. State v. Stepney, supra.
In the present case the defendant offered no evidence. There is nothing whatever in the record to suggest that he desired to call any witness who was not available to him at the trial. There is nothing in the record, or in his brief in this Court, to support his contention that, in the cross-examination of witnesses for the State, the presentation of evidence in his own behalf or in the preparation for trial, he or his counsel was handicapped by the denial of his motion for a continuance. The defendant was arrested on 20 August 1971 and the indictment was returned by the grand jury on 6 September 1971. The trial was commenced on 6 March 1972 and continued to 10 March 1972, when the jury returned its verdict and sentence was imposed.
*815 The motion for a continuance shows upon its face that the defendant was previously tried on the charge of conspiracy to commit murder at the 3 January 1972 session of the superior court and thereafter made a motion before Judge Seay for a speedy trial in this case. Thereupon the judge directed the solicitor to try this case at the earliest possible time. It was docketed for trial on 21 February 1972 and the defendant then stated he was ready for trial, but a continuance was granted upon the motion of the State. Clearly, nothing in this sequence of events indicates an abuse of discretion in denying the defendant's motion for a continuance filed at the commencement of the trial on 6 March 1972.
The motion for continuance did not assert the defendant's need for additional time in order to prepare for trial. It states, as its sole ground, that Judge Seay, having presided at the above mentioned trial of the defendant on the charge of conspiracy to commit murder, "the defendant feels that it will be prejudicial to his cause to have this case tried before the same trial judge." A defendant is not entitled, as a matter of law, to a continuance of his trial on a criminal charge for the sole reason that the judge, regularly presiding at the term for which the case is calendared, also presided at an earlier session of the court at which the defendant was tried and convicted upon a different criminal charge. This assignment of error is without merit.
The defendant's next contention in this Court is that the trial court erred in failing to find that the State's witness, Tinsley, lacked sufficient mental capacity to be permitted to testify. It is quite clearly established in this jurisdiction that a challenge to the competency of a witness on the ground of lack of mental capacity is addressed to the discretion of the trial judge. As Justice Sharp, speaking for this Court in State v. Benton, 276 N.C. 641, 174 S.E.2d 793, said: "Unsoundness of mind does not per se render a witness incompetent, the general rule being that a lunatic or weak-minded person is admissible as a witness if he has sufficient understanding to apprehend the obligation of an oath and is capable of giving a correct account of the matters which he has seen or heard with respect to the questions at issue. The decision as to the competency of such a person to testify rests largely within the discretion of the trial court." Accord: State v. Squires, 265 N.C. 388, 144 S.E.2d 49; State v. Cade, 215 N.C. 393, 2 S.E.2d 7; Stansbury, North Carolina Evidence, 2d Ed, § 55; 97 C.J.S. Witnesses § 57b.
The defendant's motion that Tinsley be found incompetent to testify was filed on 6 March 1972 at the opening of the trial. The trial court conducted a voir dire at which defendant's counsel simply stated that Tinsley had been sent to a mental hospital by order of a judge of the district court and that he desired to offer no evidence as to Tinsley's mental capacity, except a transcript of Tinsley's testimony at the above mentioned trial on the charge of conspiracy and certain other documents. These documents included the report of the assistant superintendent of the hospital, at which the examination of Tinsley was conducted and the report of another of the examining physicians at the hospital. The order of Judge Seay denying the motion recites that the court considered all of these documents. The reports of the examining physicians were to the effect that Tinsley was able to plead to the indictment then pending against him and to consult with his counsel in the preparation of his defense. It further appears from the present record that Judge Seay, having presided at the earlier trial, had observed Tinsley as he testified in that action. Under these circumstances, there was no necessity for Judge Seay to interrogate Tinsley again in order to determine his mental capacity to testify. There is no merit in this assignment of error.
The defendant's third contention in this Court is that there was error in admitting into evidence, as exhibits for the State, certain photographic slides, exhibited to the jury by projection upon a screen *816 after the court overruled the defendant's objection. The doctor who performed the autopsy upon the body of Mills testified that he, himself, took the pictures during the course of the autopsy and that they fairly and accurately represented what they purported to show. The court conducted a voir dire at which it inspected projections of the slides in the absence of the jury. They portrayed the entrance wounds and the courses of the bullets into and through the abdominal area, which formed the basis for the opinion of the doctor as to the cause of death.
Having ruled that the photographs were admissible, the court properly instructed the jury that they were admitted solely for the purpose of illustrating and explaining the testimony of this witness and not as substantive evidence. There was no error in this ruling. The number of photographs was not excessive and each was relevant upon the question of the cause of death. Under such circumstances, the fact that photographs depict a gruesome or gory spectacle does not render them inadmissible. State v. Frazier, 280 N.C. 181, 185 S.E.2d 652; State v. Chance, 279 N.C. 643, 185 S.E.2d 227; State v. Atkinson, 275 N. C. 288, 167 S.E.2d 241; State v. Gardner, 228 N.C. 567, 46 S.E.2d 824; Stansbury, North Carolina Evidence, 2d Ed, § 34.
The defendant's fourth and final contention in this Court is that there was error in admitting into evidence a Selective Service Card taken from the person of the defendant at the time of his arrest on 20 August 1971. The arresting officer had a warrant for the defendant's arrest on the charge of murder, the validity of which warrant is not contested by the defendant. The search was incident to the arrest and the card, showing the defendant's residence to be in Florence, South Carolina, was identified by the seller of the gun used by Tinsley as similar to the one presented to him by Robinson for purposes of identification when Robinson purchased the weapon. Under these circumstances, there was no error in admitting the card into evidence. State v. Jackson, 280 N.C. 122, 185 S.E.2d 202; State v. Roberts, 276 N.C. 98, 171 S.E.2d 440; State v. Tippett, 270 N.C. 588, 155 S.E.2d 269. In any event, this evidence related to a minor incident of the State's case and it is inconceivable that the jury would have returned a different verdict had this evidence not been introduced. Thus, even if erroneous, this ruling of the trial court would not be ground for a new trial. State v. Fletcher, 279 N.C. 85, 100, 181 S.E.2d 405.
The five remaining assignments of error set forth in the defendant's case on appeal are not brought forward in his brief and no authorities are cited or argument made therein in support thereof. They are, therefore, deemed abandoned. Strong, N.C. Index 2d, Criminal Law, § 166, and cases there cited. Due, however, to the serious nature of the case, we have examined each of them and find no merit therein. They relate to the denial of a motion to strike the entire testimony of the doctor who performed the autopsy, the admission in evidence of testimony that the deceased kept a considerable amount of money in a box in his home, the denial of a motion to suppress, as evidence, bullets removed from the body and identified positively by the doctor making the autopsy, the denial of a motion for nonsuit, and a portion of the charge to the jury.
As to the motion for judgment of nonsuit, the evidence introduced by the State is ample, if true as the jury believed it to be, to show that the defendant procured, if he did not compel, Tinsley to do the actual shooting of Mills and that the defendant was present, aiding and abetting in the execution of the plan. As said by Justice Sharp in State v. Benton, supra:
"Parties involved in the commission of a murder are either principals or accessories. `A principal in the first degree is the person who actually perpetrates the deed either by his own hand or through an innocent agent.' Any other who is *817 actually or constructively present at the place of the crime either aiding, abetting, assisting, or advising in its commission, or is present for that purpose, is a principal in the second degree. In our law, however, `the distinction between principals in the first and second degrees is a distinction without a difference.' Both are principals and equally guilty." (Citations omitted throughout.)
The defendant, found guilty of first degree murder, was sentenced to imprisonment for life, pursuant to the recommendation of the jury made at the time it returned its verdict, such verdict and recommendation being permitted by the instructions of the trial court. It will be observed that the murder of which the defendant has been found guilty was committed and that he was convicted and sentenced prior to the decision of the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, and prior to our decision in State v. Waddell, 282 N.C. 431, 194 S.E.2d 19. The sentence to imprisonment for life will, therefore, not be disturbed.
No error.