Ordinarily, whether a cause shall be continued is a matter which rests in the sound discretion of the trial court and, in the absence of gross abuse, is not subject to review on appeal. S. v. Allen, 222 N. C., 145; S. v. Wellmon, 222 N. C., 215, and cases cited; S. v. Rhodes, 202 N. C., 101, 161 S. E., 122. This rule is so firmly established in this and other jurisdictions as to become axiomatic. It is not debated here.
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. 0. Const., 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 *327satisfied. Tbe question is not one of guilt. Nor does it involve tbe merits of tbe defense be may be able to produce. It is whether tbe defendant has bad an opportunity fairly to prepare bis defense and present it. S. v. Whitfield, 206 N. C., 696, 175 S. E., 93. This is not a matter of discretion. Tbe law must first say where tbe line of demarcation is and on which side tbe case falls. Constitutional rights are not to be granted or withheld in tbe court’s discretion.
“Tbe rule undoubtedly is, that tbe right of confrontation carries with it not only tbe right to face one’s 'accuser and witnesses with other testimony’ (sec. 11, Bill of Rights), but also tbe opportunity fairly to present one’s defense. S. v. Ross, 193 N. C., 25, 136 S. E., 193; S. v. Hartsfield, 188 N. C., 357, 124 S. E., 629; S. v. Gamer, 203 N. C., 361, 166 S. E., 180; S. v. Hightower, 187 N. C., 300, 121 S. E., 616; S. v. Hardy, 189 N. C., 799, 128 S. E., 152.” S. v. Whitfield, supra; Anno. 84 A. L. R., 544; Anno. 84 L. Ed., 383.
Tbe right to have counsel as well as tbe right of confrontation is guaranteed. Art. I, sec. 11, N. C. Const. Where tbe crime charged is a capital felony this right becomes a mandate. C. S., 4515.
Tbe two — the right to counsel and tbe right of confrontation — are closely interrelated and, together, form an integral part of a fair trial. Hence, this requirement as incorporated in O. S., 4515, was not intended to be a mere formality. It does not contemplate that counsel shall “be compelled to act without being allowed reasonable time within which to understand the case and prepare for the defense.” North v. People, 28 N. E., 966 (Ill.).
While it is the duty of the court to see that justice is administered speedily and without delay, the trial must be in conformity to the constitutional mandates. One of these is that a defendant in a criminal case shall have counsel to represent him, Knox County Council v. State, 130 A. L. R., 1427; 1 Cooley’s Const. Lim. (8th), 696; 12 Am. Jur., 307, and the right to the assistance of counsel, includes the right of counsel to confer with witnesses, to consult with the accused, and to prepare his defense. Avery v. Alabama, 306 U. S., 444, 84 L. Ed., 377; North v. People, supra; People v. Cooper, 366 Ill., 113, 7 N. E. (2d), 882.
The duty imposed on the courts to assign counsel to defend one accused of a capital crime who is himself unable to employ counsel means more than the mere appointment of counsel. Such duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case. A reasonable time for preparation must be allowed between the. time of the assignment of counsel by the court and the date of trial. Anno. 84 A. L. R., 544. “The law of the land” is “a law which hears before it condemns,” and the right to be heard comprehends the right to be *328beard through counsel who has had a fair opportunity to acquaint himself with the law and the facts of the case.
These rights — of confrontation and to counsel — are guaranteed not only by our Constitution but also by the Due Process Clause (14th Amend.) of the Federal Constitution. “Due process of law includes the right to .counsel and its accustomed incidents of consultation with the prisoner and opportunity for preparation for trial and for the presentation of a proper defense at the trial.” Powell v. Alabama, 287 U. S., 45, 77 L. Ed., 158, and cases cited; 6 R. C. L., 453, sec. 449, Anno. 84 A. L. R., 544; Anno. 84 L. Ed., 383; 11 Am. Jur., 1106, sec. 316.
Hence, the one and only question here presented is this: Did the refusal of the trial court to grant the prisoner’s motion for a continuance impinge upon his constitutional right of confrontation, in that it denied him a reasonable time within which to prepare and present his defense ?
We may concede that if the only issue to be tried was that of guilt or innocence, based on the facts of the alleged offense, ample time was allowed. There could be but few material witnesses to this issue and the witnesses were local and readily available. Rut such is not the case. The defense here was insanity. This required investigation of the law of insanity as a defense to crime, as well as of the facts. And the investigation of the facts would include not only interviews with experts but also with relatives, friends and prospective lay witnesses.
The prisoner spent most of his life in Columbus County. There his relatives and others best acquainted with the history of his mental condition lived, more than 150 miles from Durham by automobile or bus. Travel by rail is circuitous and time-consuming. Even so, consultation with some of these was necessary before counsel could know to what extent, if any, he could press his defense.
Likewise, there are preliminary motions and orders to be made in a cause wherein the indictment charges a capital felony. Court was in session. It was the duty of counsel to be in attendance and immediately available.
It was a physical impossibility for counsel to be in attendance at court; to consult with the psychiatrist; to prepare the law; and to interview witnesses in Columbus County, all within the brief period of three and one-half days — exclusive of Sunday.
No reputable lawyer would undertake voluntarily to defend a man charged with a capital felony in which the defense of insanity was interposed without following this preparatory procedure. This was the duty of counsel here and the defendant had the right to demand reasonable time therefor.
It is true that the court, on the day the case was set for trial, directed the issuance of a subpoena for any witness in Columbus County or *329elsewhere desired by the prisoner and made arrangement for its service. Was this subpoena issued and served? Two witnesses from Columbus County appeared and testified in behalf of the prisoner on the day the defendant was convicted and sentenced to death. Otherwise, the record proper does not answer. Even so, we would not undertake to make it appear that the prisoner has been put to a disadvantage in this respect by concealing or ignoring a known fact. The clerk of the Superior Court has certified a subpoena as a part of the record below. This shows that it was issued 1 April, commanding the sheriff of Columbus County to summons the four witnesses therein named.
It is likewise true that an examination by Doctor Lyman, a psychiatrist, was ordered. But the examination by the psychiatrist was ordered on the day the trial began and was not completed. His report so indicates, and it is so asserted without challenge. (See affidavit.)
Granted that the subposna was issued and served and that the examination was had under the circumstances here disclosed, the requirements of the law are not fulfilled in such manner.
Nor is it enough to assume that counsel, being forced to trial, exercised his best judgment in proceeding without preparation. Neither he nor the court could say what a .prompt and thorough-going investigation would disclose.
Assuming the mental capacity of the prisoner (a material issue upon which he has not been fully heard), he may deserve to suffer the penalty of death. There is little in this record to the contrary. But this is not the issue. Whether his defense before a jury after full preparation would have availed him is for the present purpose immaterial. The law provides one mode of trial and it is the same for the innocent and for the guilty. The fact that an accused person on the trial may be shown to be guilty is not, of itself, sufficient reason to deny him full opportunity to present, through counsel, such defense as he may have to the charge. People v. Lavendowski, 326 Ill., 173, 157 N. E., 193; People v. Kurant, 331 Ill,, 470, 163 N. E., 411.
It is vain to give the accused a day in court with no opportunity to prepare for it or guarantee him counsel without giving the latter any opportunity to acquaint himself with the facts or the law of the ease. Commonwealth v. O’Keefe, 298 Pa., 169, 148 Atl., 73. “A right observed according to form, but at variance with substance, is a right denied.” S. v. Whitfield, supra.
The prompt disposition of criminal eases and the vigorous administration of the criminal law are essential. Certainly this is true in respect to crimes such as the one here charged. But we must not forget that it is eases of this very nature that are most apt to cause us to fail to see with an unprejudiced eye and to judge with that singleness of *330purpose so essential to the fair and impartial administration of the law “in the calm spirit of regulated justice.” Powell v. Alabama, supra.
But it has been urged that the trial was conducted without error, and that, therefore, the verdict should not be disturbed. This we cannot concede.
The court instructed the jury in part as follows:
“Now, Gentlemen, in this case the defendant has entered a plea in respect to the alleged crime, entered a general plea of not guilty, and another plea of not guilty by reason of insanity.
“In respect to that, I charge you further that by this plea that he says he admits the act or does not deny the act but says that if he did commit the act he would not be responsible by reason of insanity.”
As there is no exceptive assignment of error directed to this part of the charge, it cannot be made the basis of an order for a new trial. Nor perhaps should we discuss it at length. However, it is not amiss to direct attention thereto in answer to the argument made.
We conclude that to force this defendant to trial under the circumstances here disclosed is not due process of law and does not preserve the right of confrontation, regardless of the merits of the case. For this reason there must be a
New trial.
Seawell, <L, dissenting: I cannot agree with the majority in the disposition of this case. The oath taken by a judge of the Superior Court requires him to administer justice “without denial or delay.” The circumstances of this case bring the denial of the motion to continue fully within the ordinary discretion of the trial judge, without denying due process of law or infringing any other right of the defendant, and in the exercise of that discretion, the trial was patently not accelerated by any public demand or feeling on the part of the court engendered by the enormity of the crime of which defendant was accused. The accused was as fully heard upon the question of his insanity as the circumstances of the case warranted, and a close scrutiny of the record does not warrant the assumption that he was prejudiced by a refusal to continue the case.
In his dissenting opinion in Lochner v. People of New York, 198 U. S., 45, 49 L. Ed., 937 — involving an alleged violation of the same constitutional right — Mr. Justice Holmes observed: “General propositions do not decide concrete cases. The decision Avill depend on a judgment or intuition more subtle than any articulate major premise.”
In the present case, I think it depends upon a sound sense of values which will penetrate beyond nonessentials into a proper appraisal of the facts in their true perspective and in their relation to a rule of fairness *331upon which we all agree. I am satisfied that the constitutional rights of the defendant were adequately protected.
Devin, J., concurs in dissent.