#### STATE OF NORTH CAROLINA v. JESSE GARFIELD PATTON

(Filed 30 October 1963.)

1. Constitutional Law § 30; Criminal Law § 86—

A person wbo is formally charged with the commission of a crime is entitled to a speedy and impartial trial under both the Federal and 'State Constitutions, but the right to a speedy trial is necessarily relative, and may be used only as a shield to protect a defendant against arbitrary and oppressive delays due to the fault of the prosecuting authorities.

3. Same—

A delay of more than four years between the time the alleged offense was committed and the retrial of defendant does not violate defendant’s constitutional right to a speedy trial, notwithstanding two of defendant’s witnesses may not be available at the retrial, when it appears of record that there was no contention of undue delay in respect to the original trial and that retrial was had shortly after and in accordance with the order of the Federal Court setting aside the former conviction on the *360ground that defendant was not represented by counsel, since the delay was not due to the prosecuting- authorities but to the act of defendant in procuring a retrial.

3. Appeal and Error § 35; Criminal Law § 151—

The Supreme Court will take judicial- notice of -its own records in an interrelated proceeding where the parties are the same, and therefore will take notice of an affidavit filed in proceedings fox *certiorari*relating to the ■same prosecution.

4. Constitutional Law § 30; Criminal Law § 86—

,W-hen it appears from the record that defendant’s witness- would testify that he -drove defendant to a city in. -another sítate some time before the alleged- offense was committed in this .'State, that the witness knew defendant had no -automobile and “believed” it would have been almost impossible for defendant to have been in this -S-tate at the time the offense was committed, the fact that such witness -was incapacitated at the time -of trial is not ground for continuance, since such testimony would have no probative force in -support of defendant’s defense of alibi. Constitution of North Carolina, Article I, § 17.

Appeal by defendant fr-om *Campbell, J.,*May Criminal Session 1963 of Caldwell.

Criminal prosecution on an indictment, found- at -the February Term 1960, 'charging the -defendant on 20 October 1958 wi-th robbing J. E. Chandler -of $12 in money by the use -of firearms 'and other dangerous weapons, -a -violation of G.S. 14-87. (Since the citizen® -of North Carolina in .the General Election of 6 November 1962, by a majority of the votes cast, -amended Article IV of the State Constitution, terms of the superior court are now designated in this article of the Constitution as sessions of court.)

Plea: Not guilty. Verdict: Guilty as charged.

Ero-m -a judgment o,f imprisonment, defendant appeals.

*Attorney General T. W. Bruton and Assistant Attorney General James F. Bullock for the State*

*Claude F. Seila for defendant appellant.*

PARKER, J.

Defendant -assigns as error itih-e denial by the -court of Ihis written motion, made before pleading to- the indictment, to- dismiss the -indictment against Mm -and to- -discharge him from custody on the -ground -that to try him now -on lan indictment found -against him at the February Term I960 would be a denial -of his constitutional rights to a -speedy -and impartial trial, and o-f his rights to- due process of law under the Fourteenth Amendment to the Federal Constitution. In his written motion, he states that the offense charged in the indict-*361meant is 'alleged to 'have occurred on- 20 October 1958, that at the time of the alleged commission of the offense he was rooming and boarding at the house of Mr,s. Florence Rutledge in Roanoke, Virginia, who ■could testify, if .alive, that at the time of the commission of the alleged offense he was in Roanoke, Virginia, but that she is now dead; and further that one Kermit Vanhoy, who carried him to- Roanoke, Virginia, on 12 October 1958, 'and was with him in Roanoke, Virginia, on 17 and 23 October 1958, and knows that he had no automobile, recently sustained a serious brain injury in an automobile accident and is unable to testify in his behalf.

A chronicle of this case prior to the M.ay Criminal Session 1963 is necessary for -a proper consideration of this assignment of error.

On 25 October 1958 defendant was arrested in Caldwell County, North Carolina, and charged with the robbery of J. E. Chandler.

At the December Term 1958 of the superior court of Caldwell County, an indictment was properly found by the grand jury .of that county charging 'him with larceny of $12 in money from the person of J. E. Chandler by assaulting him and putting him in bodily fear and danger of his life. Defendant was not tried .at that term.

At the February Term 1960 of the superior court of Caldwell County, the indictment upon which he was tried in this ease was properly found by the grand jury of that county.

It seems from defendant’s following testimony, given in the instant trial, that he was lawfully imprisoned during a part or most of 1959:

> Direct examination': “Yes, I have 'been in difficulty with the law before. Well, in ... I think it was 1949, I was convicted of breaking and entering; and then in 1956, I 'believe it was, I was convicted of . . . it was whisky; in other words, a whisky oar was involved in it. The Federáis took it and I went and took i.t back. This happened in 1955 but they didn’t try me until 1958 . . . receiving stolen property. I served time for these offenses. When I was tried for those offenses, I pleaded guilty.”

> Gross examination: “Yes, I was in Federal Prison. That was for transporting a stolen car across state lines. Yes, it was a liquor car; it had been. I just hauled some for the distillers. I served a term in the Federal Prison and State’s Prison.”

Defendant was first tried on the indictment here charging armed robbery at the February-March Term 1960. He pleaded not guilty. He was not represented by counsel, having dismissed his employed counsel on the day of trial. He was convicted .and sentenced to imprisonment. He did not appeal.

*362On 6 March 1962 Froneberger, Judge Presiding, .appointed Claude E. Seila, -a member >of -the bar of Caldwell County, to represent defendant, an indigent person, in a post-conviction hearing. On 25 March 1963 the United States Court of Appeals, Fourth Circuit, by a decision rendered by two judges, with one judge dissenting, held that defendant, who dismissed his employed counsel on day of trial after having been told .that 'his trial would commence that day, with or without counsel, did not waive his constitutional right to. .assistance of counsel to defend charge of armed robbery. The majority opinion closed with this language: “The District Court should afford the State of North Carolina a reasonable opportunity to retry the prisoner. In .default of this, the District .Court .should order lhs release. To. that end, the case will be remanded for further proceedings consistent with the views herein expressed.” *Patton v. State of North Carolina,*315 F. 2d 643. In this majority opinion appear these words, which seem to support what we have said above that it .appears from Patton’s testimony here that he was undergoing lawful imprisonment during a part or most of 1959: “At the February 1960 term, the grand jury returned an indictment against Patton for .armed robbery and the case was called for trial on that indictment on March 8, 1960. Patton was at that time in state custody and was serving a sentence for another offense.”

When the opinion of the United States Court of Appeals, Fourth Circuit, was certified to the United States District Court for the Middle District of North Carolina, Preyer, United States District Judge, Middle District of North Carolina, entered on 29 April 1963 an order as follows:

> “It is, THEREFORE, ORDERED, in 'accordance with said ■opinion, that the State of North Carolina is afforded the opportunity to retry the petitioner at the criminal term of the Superior Court of Caldwell County, North Carolina, to> be -held at Lenoir, North Carolina, commencing on the 20th day of May, 1963;

> “It is further ordered that if the State of North Carolina does not retry the .petitioner iat said term of court, the petitioner is to be forthwith released and absolutely discharged.”

Defendant at the May Criminal Session 1963 was tried on the indictment found at the February 1960 Term. He was represented by his assigned counsel, Claude F. Seila.

The State’s evidence show© these facts: On 20 October 1958 J. E. Chandler, a man 76 years old, was operating a little store about 50 or 100 feet from his home. About 7:00 p.m. on the same date, his store *363was closed amid while be was in bis borne eating ©upper with bis wife, who was 'about the same age, defendant Patton came into the house and said be wanted toi get a package of cigarettes. After Chandler finished eating supper, he got this flashlight and went out to hois store to unlock the door. When he was unlocking the store, Patton came up behind 'him, threw bis hands over bis mouth, lifted him off the ground, and said, “Tie him up.” Another man tied one of his hands and tried to tie the other. Chandler had the padlock in his hand and hit 'him in the face with it. Than he tied his 'hands. They took from his person $15 in money. Chandler was making all the noise be could. When these two men ©aw the flashlight, which was being carried iby Chandler’s daughter and son-in-law as they approached, they hit him on the head with some kind of heavy metal, ran, jumped in a car, and left. It required 14 stitches to sew up /the wound on Chandler’s bead caused by the blow. Chandler could not identify the other man. On the morning of that day Chandler was carrying a load of cattle to> Wilkesiboro, and ©aw defendant Patton standing on the highway at the foot of Blowing Rock Mountain.

Defendant offered no witnesses. He testified in substance a© follows: He is 38 years old. On 20 October 1958 he was in Roanoke, Virginia, seeking employment and was not in Caldwell County. He went to Roanoke, Virginia, in Hermit Vanboy’s car. He had been there for several weeks. He stayed in Roanoke, Virginia, in a rooming house on Day Street, he believes, until 30 October 1958. The keeper of the boarding house, whose name he does not recall, died .two- or three years ago. Last October Hermit Vamhoy had am automobile accident, has a blood clot on his brain, and is not quite normal at .the present time. On 20 October 1958 he was not at the Chandler home and did not see them. He did mot strike him and did not rob him.

Defendant is claiming no undue delay in respect to his trial at the Fabruary-March Term 1960. On the contrary, what he is concerned with is the delay between the time of the commission of the alleged crime on 20 October 1958 and the beginning of the retrial at the May Criminal Session 1963, when one of his witnesses, Mrs. Florence Rutledge, had been dead two or three years, and another witness, Hermit Vanhoy, had bad an automobile accident in October 1962, has .a blood clot on the brain, and is not quite normal at the present time. By reason of these facts, he contends he is unable to offer the testimony of these two witnesses and no retrial should have taken place, and he should have been discharged.

The right of a person formally accused of crime to a speedy and impartial trial has been guaranteed to Englishmen since Magna Carta, *364and the principle is embodied in the Sixth Amendment to the Federal Constitution, and in some foam is contained in our State Constitution and in that of most, if not all, of our sister state®, or, if not, in statutory provisions. *S. v. Webb,*155 N.C. 426, 70 S.E. 1064; 22A C.J.S., Criminal Law, sec. 467 (2).

G.S. 15-10, entitled “Speedy trial or discharge on commitment for felony,” requires simply that under certain 'circumstances “the prisoner’ be discharged from custody and not that he go. quit of -further prosecution.” *S. v. Webb, supra.*

The Court said in *Beavers v. Haubert,*198 U.S. 77, 49 L. Ed. 950, 954: “The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.”

The 'constitutional right to a speedy trial is designed to- prohibit arbitrary and oppressive delay® which might be caused by the fault of the prosecution. *Pollard v. United States,*352 U.S. 354, 1 L. Ed. 2d 393; *State v. Hadley,*Mo., 249 S.W. 2d 857. The right to. a speedy trial on the merits is not designed as a isiword for defendant’s escape, but as a shield for his protection.

But here there has been no arbitrary and oppressive delay or reluctance on the part of the State to prosecute. On the ioonihr.ary, the delay in the time of the retrial is wholly due to the belated discovery by the United States Court of Appeals, Fourth Circuit, on defendant’® appeal, of a fatal error in the first trial at the February-March Term 1960, which entitled defendant to relief from the .sentence and judgment which had been pronounced upon him on his first trial, but only to the point of remanding the case back so as to afford the State of North Carolina a reasonable opportunity to- retry the defendant, or, in default of this, to order his release. The Federal Court of Appeals rendered its decision on 25 March 1963. When this opinion wats certified to the United States District Court for the Middle District -of North Carolina, that Court on 29 April 1963 entered an order, according to the mandate of the Court of Appeals, affording the 'State of North Carolina -an opportunity to retry defendant at the criminal term commencing on 20 May 1963, or if he wais not retried >at that term he should be forthwith -and absolutely released. The retrial was had in strict conformity with the order of the federal court. Under such circumstances there has been no denial of defendant’s constitutional rights -to a speedy -trial, as tihe delay in the time of the retrial was caused by his successful efforts to reverse his conviction -at the first trial. *Ex parte Alpine,*203 Cal. 731, 265 P. 947, 58 A. L. R. 1500; *People v. Lundin,*120 Cal. 308, 52 P. 807; *Ex parte Warris,*28 Fla. 371, *3659 So. 718; *Silvey v. State,*84 Ga. 44, 10 S.E. 591; *Marzen v. People,*190 Ill. 81, 60 N.E. 102; *Ferguson v. Bechly,*224 Iowa 1049, 277 N.W. 755; *State v. Dehler,*257 Minin. 549, 102 N.W. 2d 696, 89 A. L. R. 2d 496; *State v. Bulling,*105 Mo. 204, 15 S.W. 367, 16 S.W. 830; *State v. Schnell,*107 Mont. 579, 88 P. 2d 19, 121 A. L. R. 1082; *State v. Hadley, supra; Patterson v. State,*50 N. J. L. 421, 14 A. 125; *Ex parte Meadows,*71 Okl. Cr. 353, 112 P. 2d 419, 427; *Com. v. County Prison,*97 Pa. 211; *Smith v. Com.,*85 Va. 924, 9 S.E. 148; *Com. v. Adcock,*8 Grat. (49 Va.) 661; *Vance v. Com.,*2 Va. Cas. 162; *In re Murphy,*7 Wash. 257, 34 P. 834; *State v. Miller,*72 Wash. 154, 129 P. 1100; 22A C. J. S., Criminal Law, sec. 472(4); 16 C. J., Criminal Law, sec. 804(2); Wharton’s Criminal Procedure, 1957, Vol. 5, p. 3. See *Fay v. Noia,*372 U.S. 391, 9 L. Ed. 2d 837, in which case Noia and two others were convicted of murder in 1942, and the Supreme Court oí the United States on 18 March 1963 rendered an opinion affirming an opinion of the Court of Appeals, Second Circuit, which held that Noia’is conviction be set aside and that he be discharged from custody, unless given a new trial forthwith. See also *State v. Hadley, supra,*in which the Supreme Court of Missouri, Division No. 2, held that defendant was not denied his constitutional right to a speedy trial because of a delay of twenty years 'between the time when he was originally .arrested and the beginning of -his second trial after a judgment, under Which he was confined in the penitentiary, on a previous verdict of conviction, was vacated in a habeas corpus proceeding brought by him.

When .a case is retried, after a successful -appeal to .an appellate court, there is always the hazard that one or both of -the parties may jbe deprived of the testimony of one or more witnesses by death or incapacity. To hold that when a defendant in a criminal .action by his appeal has secured a new trial he cannot foe prosecuted promptly again, because by the death of -a witness who would testify in his favor, if alive, .at the time of the -re,trial, he would in such trial by such death and loss of evidence foe denied the right of due process of law under ■the Fourteenth Amendment to the Federal Constitution and to the rights of “the law of the land” provision of Article I, Section 17, of the State Constitution, would mean that some, if not many, eases could not be tried .again.. When a defendant by 'his appeal obtains -a new trial, the law does not require that the State in order to- prosecute him again must guarantee that all his witnesses shall be .alive and capable of testifying for him at the retrial, for to require 'that would be for the law to exact of the State impossibilities. If a defendant by his appeal secures a new trial, and if at the time of the new trial the State’s es-*366eential -witnesses are dead or incapable of testifying, the State has no other recourse than to discharge the defendant, no matter how guilty he may be. To paraphrase the language in *Beavers v. Haubert,*supra, due process of law secures rights to a defendant but it does not preclude the rights of public justice. The State has not lost the right to retry defendant iby reason of the death of Mrs. Florence Rutledge, one of his witnesses. In *State v. Dehler, supra,*the Court held that an accused who, about seventeen years after his conviction and sentence for mur■der, is released on habeas corpus for lack of jurisdiction of the court in which he was tried, cannot properly claim the absence of a right to retry him for the reason that, due to 'the lapse of time, it is more difficult to- prove insanity, his main defense.

Defendant’s defense is an alibi; that is, that he was in Roanoke,'Virginia, a,t the time the State’s evidence shows the offense was committed in Caldwell County, North Carolina, and, therefore, he could not have committed the crime. lie assigns as error the refusal of the trial court to continue .the trial to a later session of court due to his inability to have Kermit Varnhoy as a witness at the trial due to his illness, 'and he further contends that to try 'him at the May Criminal Session 1963 for am offense alleged to have been committed on 20 October 1958, when Vanlioy, due to an automobile wreck in. October 1962, has a blood clot on' the brain and is not quite normal at present, denies him due process of law under the Fourteenth Amendment to the Federal Constitution, and his rights under “the law of the land” provision of the State Constitution, Article I, Section 17. In his brief he .states: “But the retrial is of no benefit, if, because of the delay occasioned by the State in affording him a ‘fair’ trial, Iris only witnesses are unavailable, one being dead, ¡and .the other incapacitated.” This -statement in' the brief is erroneous in- .stating the delay was occasioned by the State, as we have pointed out above, and further in error in asserting by inference that the 'State did not afford him a fair trial.

Defendant in his written motion to dismiss the indictment against him iapd to -discharge him from custody, made at the May Criminal Session. 1963, states this in respect to Kermit Vanhoy:

> “As a further ground for .said Motion the defendant .shows unto the Court .that Mr. Kermit Varnhoy, who took the defendant to Roanoke, Virginia, on the 12th day of October, 1958, and .who was with the defendant on the 17th day of October, 1958, and on the 23rd -day of October, 19-58, in. Roanoke, Virginia, and who knows of .his own. knowledge -that the -defendant did not have an automobile or any other means of transportation to- and from Caldwell *367County, North Carolina, where the said offense is alleged to 'have occurred, was recently seriously injured in .am. automobile accident and sustained serious brain injury in ¡said accident, ¡and is therefore unable to testify in behalf of the 'defendant; that the defendant is not responsible for the condition of Kermit Vamboy.”

On 28 March 1962 defendant, through his present counsel Claude F. S'eila, filed a petition in this Court for a writ of 'certiorari to review an order entered by Judge Froneberger on 7 March 1962 in a post-conviction hearing 'involving the constitutionality of his trial, conviction, and sentence at the February-March Term 1960. Judge Froneberger in his order denied defendant any relief. In the petition for a writ of certiorari filed with us, which petition we denied, there is am affidavit by Kermit Vamboy. We take judicial notice of our own records in this interrelated proceeding where the -parties are the same. *S. v. McMilliam,*243 N.C. 775, 92 S.E. 2d 205; *U. S. v. Pink,*315 U.S. 203, 216, 86 L. Ed. 796, 810; *Dimmick v. Tompkins,*194 U.S. 540, 48 L. Ed. 1110; *Bienville Water Supply Co. v. Mobile,*186 U.S. 212, 46 L. Ed. 1132; *Freshman v. Atkins,*269 U.S. 121, 124, 70 L. Ed. 193, 195; *West v. L. Bromm Baking Co.,*166 Va. 530, 186 S.E. 291; 31 C. J. S., Evidence, pp. 625-6. That-affidavit is:

> “Kermit Vamboy, ¡being first duly sworn, deposes and says:

> “That he is a citizen and resident of Y-adkin County, North Carolina.

> “That on the 12th day of October, 1958, this affiant drove his automobile from North Carolina to Roanoke, Virginia, where this affiant was -employed; -that on said occasion Jesse Garfield Patton rode with this -affiant to Roanoke, Virginia, for the purpose of -trying to find a job there.

> “That this -affiant and Jesse Garfiel-d Patton arrived im Roanoke, Virginia during the night of October 12, 1958, -and this affiant left Roanoke, Virginia, and went to his job on the 13-th day of October, 1958, leaving Jesse Garfield Patton at 218 Day Avenue, Roanoke, Virginia;

> “That thereafter -on the 17th day of October, 1958, this affiant returned to Roanoke and saw Jesse Garfield Patton at Roanoke, Virginia; that this affiant drove back to Jonesville, in Yadkin County, North Carolina, on Friday, October 17, 1958, leaving Jesse Garfield Patton in Roanoke, Virginia.

> “That thereafter on October 23rd, 1958, on. a Thursday night this affiant returned to Roanoke and the following morning, Oc-*368toiber 24th, 1958, Jesse Garfield Patton came to* eat breakfast at the boarding house where this affiant boarded in Roanoke, Virginia ;

> “That thereafter this affiant and Jesse Garfield Patton came to Caldwell County, North Carolina, for the purpose of visiting a friend of Jesse Garfield Patton, and Patton was at that time on October 25, 1958, arrested and charged with ‘Larceny from the Person.’

> “That this affiant knows .that Jesse Garfield Patton had no automobile and this affiant verily believes that it would have been almost impossible for Jesse Garfield Patton to have committed any crime in Caldwell County on the 20th d'ay of October, 1958.

> */&/*Kermit Vanhoy

> Kermit Vanhoy

> “Sworn to and subscribed before me this 6th day of March, 1962.

> /s/ Ted G. West

> Notary Public.”

It is manifest from Vanhoyis affidavit, 'and from the extract from defendant’s motion, which we have quoted above, that Kermit Vanhoy, if he had been present as a witness in the present trial and had testified, could not have testified as to Where defendant was on 20 October 1958, and that his testimony would not have supported defendant’s aliibi. The part of .the last sentence in Vaehoy’is affidavit that he “knows Jesse Garfield Patton 'had no automobile” is of little value because of bus transportation and the vast number of automobiles in Virginia and North Carolina. The last part of the last sentence in Vanhoy’s affidavit that he “verily believes that it would have been almost impossible for Jesse Garfield Patton to have committed any .crime in Oaldwell County on the 20th day of October 1958” is incompetent in evidence as merely .the expression of opinion. Further, there is nothing in the record before us to show that Vanhoy will ever be capable of testifying as a witness.

The trial court did not err in refusing to continue the case due to the absence of Vanhoy. Further, defendant was not denied his right to due process of l'aw under the Fourteenth Amendment to the Federal Constitution, and his right -to the protection of the provisions of “the law of .the land” provision of Article I, Section 17, of the State Constitution in his retrial due to the absence of Vanhoy as a witness.

*369We 'have examined 'the assignments ol error to the .charge brought forward and discussed in defendant's brief, and they are not sufficient to justify a new trial.

All defendant’s 'assignments of error are overruled. In the trial below we find

No error.