#### STATE v. JAMES W. HACKNEY.

(Filed 5 May, 1954.)

1. Constitutional Haw § 34d — Circumstances held not such as to require court to appoint counsel for defendant in noncapital case.

Where petitioner, in a proceeding under the Post Conviction Hearing Act, neither alleges nor offers evidence that he was ignorant, of limited education, incompetent, or inexperienced in criminal trials, but his own testimony discloses that at the time of the trial he was a mature man and had entered a plea of guilty to a felony some years prior thereto, without evidence that he had been unable to employ counsel on his own behalf, *is held*insufficient to show any special circumstances requiring the court to appoint counsel to represent him, even upon his request, and the failure of the court to appoint counsel for him did not violate his constitutional rights *231under Article I, Secs. 11 and 17 of the State Constitution or the Fourteenth Amendment to the Federal Constitution.

2. Constitutional Law § 34c—

The constitutional right of a person accused of crime to confront his accusers embraces the right of accused to have witnesses in court and to examine them in his behalf, and a fair opportunity to prepare and present his defense, and this constitutional right of confrontation must be afforded accused not only in form but also in substance.

3. Same: Criminal Law §§ 41, 81a—

When a request for a continuance in a criminal prosecution is based on the right of the accused guaranteed by the Fourteenth Amendment to the Federal Constitution and Article I, Secs. 11 and 17 of the State Constitution, the question is one of law and not of discretion, and the decision of the lower court is reviewable.

4. Criminal Law § 44—

Trial upon an indictment charging an offense less than a capital felony may be had at the term the bill of indictment is returned.

5. Same: Criminal Law § 89 — Held: Defendant failed to show deprivation of constitutional light necessary to relief under Post Conviction Hearing Act.

Where, in a hearing under the Post Conviction Hearing Act, G.S. 15-217, *et seg.,*petitioner asserts that he was denied his constitutional rights in the trial resulting in his conviction because he was put on trial without preliminary hearing on the day the indictment was returned after his motion for continuance had been denied, *is held*insufficient basis for relief when petitioner fails to show that he gave the court names of any witnesses, or that if given time he could have produced any witnesses in his behalf, since there is no showing that defendant was denied his constitutional rights of confrontation or that the court manifestly abused its discretion in refusing a continuance.

6. Indictment and Warrant § 1—

A preliminary hearing is not an essential prerequisite to the finding of an indictment in this State.

*7.*Criminal Law § 89—

Belief under the Post Conviction Hearing Act must be based upon some deprivation of a substantial constitutional right in the trial resulting in petitioner’s conviction.

Johnson and Bobbitt, JJ., dissent.

PeoceediNg under the North Carolina Post-Conviction Hearing Act, G.S. 15-217, *et seq.,*heard by *Williams, J.,*at the August Term 1953 of Chatham:, and reviewed by the North Carolina Supreme Court upon a duly granted writ of *certiorari.*For good cause shown, the Superior *232Court permitted the petitioner to prosecute bis proceeding in the Supreme Court without providing for the payment of costs.

In prosecuting this proceeding, both in the Superior Court and in the Supreme Court, the petitioner, James V. Hackney, was represented by able and experienced counsel, resident in Chatham County, duly appointed by the Superior Court of Chatham County.

The petitioner, James W. Hackney, was indicted by a grand jury at the January Term 1950 of the Superior Court of Chatham County. The bill of indictment charged the petitioner on 5 December 1949 with robbery with firearms, to-wit, a pistol, of Ed Neal, whereby the life of Ed Neal was endangered or threatened. The indictment charged a violation of G-. S. N. C. 14-81. At the same term he pleaded Not Guilty; was put on trial and convicted by a petit jury on this charge. In consequence the presiding judge sentenced him to serve 20 years in the State Prison; the sentence to begin at the expiration of sentence imposed in Union County at the October Term 1944, which sentence James *W.*Hackney, the petitioner, was serving at the time of his escape.

The petitioner did not appeal. He is now in the State Prison serving the sentence imposed at the October Term 1944 of the Superior Court of Union County, which sentence does not expire until 15 December *1959.*

On 5 March 1953 the petitioner commenced this proceeding in the Superior Court of Chatham County against the State of North Carolina. The petitioner alleges that his constitutional rights were violated in the original criminal action in Chatham County, in this particular; that no warrant, capias or court order was served upon, or read to him; that no previous hearing in a court inferior to the Superior Court had been had; that he was placed in the county jail, and put on trial, the week the indictment was found; that his request for the appointment of counsel by the court to represent him was denied; that his request for witnesses was denied; that his entire trial, conviction and sentence, lasted less than twenty minutes.

The solicitor filed answer denying that petitioner made any request for the appointment of counsel to represent him; denying that he requested any witnesses to be subpoenaed for him; and alleging that the petitioner was brought from the State Prison by order of the Presiding Judge at the January Term 1950 of Chatham County Superior Court; placed on trial at said term, and while he does not recall the time consumed in the trial, “such time as was necessary to hear the State’s evidence and to permit deliberation by the jury, the return of the verdict, the imposition of sentence upon the defendant, was consumed and no more.”

At the August Term 1953 of the Superior Court of Chatham County the Presiding Judge heard the evidence offered by the petitioner — the *233State offered none — made findings of fact, conclusions of law, and entered judgment. G. S. N. C. 15-221.

Tbe essential facts appearing in tbe Record are stated below.

*One.*At tbe October Term 1944 of tbe Superior Court of Union County tbe petitioner herein entered a plea of guilty of robbery witb firearms, and was sentenced to serve a term in tbe State Prison. In November 1949, while serving this sentence, be escaped. On 12 December 1949 be was captured, and returned to tbe State Prison. On tbe night of 4 December 1949, and tbe early morning of 5 December 1949, petitioner testified be was in Chatham County visiting bis children.

*Two.*Tbe minutes of tbe Chatham County Superior Court show tbe January Term 1950 of that court convened on Monday 16 January, and on tbe same day the Grand Jury returned tbe bill of indictment charging tbe petitioner witb tbe robbery of Ed Neal. On tbe afternoon of that day tbe petitioner pleaded Not Guilty and was placed on trial before tbe judge and a petit jury. Tbe following day tbe jury returned a verdict of Guilty, and sentence was imposed.

*Three.*Tbe petitioner testified that about 2:30 p.m. on 16 January 1950 be was carried directly from a State Prison Camp in an adjoining county to the courthouse of Chatham County. He was carried into tbe courtroom, where court was in session. Shortly after arrival tbe solicitor for tbe State told him be was indicted for robbery witb firearms, and asked him if be was Guilty or Not Guilty. Petitioner told tbe Presiding Judge be did not know until then that be bad been charged or indicted for tbe crime of robbery of Ed Neal; that be was Not Guilty; and that be wanted time to get some witnesses, and prepare for trial. The judge asked him what witnesses be wanted. Tbe petitioner did not give him tbe names of any witnesses; be didn’t have time to think because just then was tbe first notice be bad that be was charged witb tbe robbery of Ed Neal. When the petitioner testified in this proceeding at tbe August Term 1953, be gave no names of any witnesses be wanted. Tbe petitioner then requested tbe judge to appoint counsel to represent him at tbe January Term 1950, but bis request was refused, and be was placed upon immediate trial. Tbe petitioner gave no testimony as to tbe length of tbe trial, except that be said the trial began Monday afternoon, and was finished Tuesday morning.

*Four.*Tbe State offered testimony which, if believed beyond a reasonable doubt by tbe jury, was amply sufficient to convict. Tbe petitioner testified in bis own behalf, denying *in to.to*tbe charge in tbe indictment against him.

*Five.*The only evidence offered by petitioner in this proceeding at tbe August Term 1953 was bis own testimony, tbe minutes of tbe court, and tbe commitment.

*234After bearing tbe evidence Judge Williams found as a fact that tbe petitioner at tbe January Term 1950 of tbe Superior Court of Chatham County was duly tried upon a valid bill of indictment, found Guilty and sentenced to prison, where be is now; that be bad a fair trial and that no substantial constitutional rights of tbe petitioner have been denied as guaranteed by State and U. S. Constitutions; that the allegations of bis petition are not supported by the evidence, and entered judgment declaring tbe petitioner is entitled to no relief in this proceeding.

Petitioner excepted and assigned error to tbe judge’s findings of fact that be bad a fair trial: that no substantial constitutional rights of bis have been denied; that tbe *allegata*of bis petition were not supported by *probata;*and excepted to the judgment.

Tbe petition for *certiorari*was granted, and tbe case brought to tbe Supreme Court for review. G. S. N. C. 15-222.

*Harry McMullan, Attorney General, and Ralph Moody, Assistant Attorney-General, for the State.*

*Ike F. Andrews, W. Reid Thompson and Wade Barber for Defendant, Petitioner Appellant.*

Paeicee, J.

While Judge Williams did not specifically find that tbe petitioner, James W. Hackney, requested tbe judge at tbe January Term 1950 of tbe Superior Court of Chatham County to appoint counsel to represent him at tbe trial, and tbe judge failed to do so, tbe evidence is uncontradieted to that effect, and we assume such to be tbe fact. Petitioner’s contention that this deprived him of a substantial constitutional right given to him by Art. I, secs. 11 and 17 of tbe North Carolina Constitution and tbe 14th Amendment to tbe U. S. Constitution rests solely upon bis bald assertion that be requested tbe judge to appoint counsel to represent him at the trial, and tbe court did not do so. Tbe charge was not a capital offense. Tbe petitioner has neither allegation nor evidence that be was illiterate, ignorant, incompetent, of limited education, or inexperienced in criminal trials. His own testimony shows that be entered a plea of guilty to an indictment charging him with robbery with firearms at tbe October Term 1944 of tbe Superior Court of Union County, and was sentenced to prison. Certainly in 1950 be, tbe father of two children, was neither a tender youth, nor a stranger at tbe bar in a criminal court charged with a serious felony. The petitioner has failed to show any special circumstances requiring tbe court to appoint a lawyer to represent him to secure him an adequate and fair defense, and that tbe failure to appoint counsel for him violated bis constitutional rights under tbe State or Federal Constitutions. *S. v. Cruse,*238 N.C. 53, 76 S.E. 2d 320; *S. v. Wagstaff,*235 N.C. 69, 68 S.E. 2d 858; *S. v. Hedgebeth,*228 *235N.C. 259, 45 S.E. 2d 563; *Palmer v. Ashe,*342 U.S. 134, 96 L. Ed. 154 (See Anno. p. 161); *Uveges v. Pennsylvania,*335 U.S. 437, 93 L. Ed. 127 (See Anno. p. 137); *Betls v. Brady,*316 U.S. 455, 86 L. Ed. 1595; *People v. Pring,*414 Ill. 63, 110 N.E. 2d 214; Anno. 149 A.L.R. 1403; 23 C.J.S., Grim. Law, sec. 982.

The petitioner bas a constitutional right of confrontation, of which he cannot lawfully be deprived, and this includes the right of a fair opportunity “to confront the accusers and witnesses with other testimony.” N. C. Cons., Art. I, sec. 11; *S. v. Garner,*203 N.C. 361, 166 S.E. 180.

The word *confront*secures to the accused the right to have his witnesses in court, and to examine them in his behalf. *S. v. Thomas,*64 N.C. 74. It further secures to the accused a fair opportunity to prepare and present his defense, which right must be afforded him not only in form but in substance. *S. v. Whitfield,*206 N.C. 696, 175 S.E. 93; *S. v. Utley,*223 N.C. 39, 25 S.E. 2d 195.

When a request for a continuance in a criminal case for a later day in the term, or for the term, is based on a right guaranteed by the 14th Amendment to the U. S. Constitution or by Art. I, secs. 11 and 17 of the North Carolina Constitution, “the question presented is one of law and not of discretion and the decision of the court below is reviewable.” *S. v. Farrell,*223 N.C. 321, 26 S.E. 2d 322.

It is established law in this jurisdiction that “a motion for a continuance is addressed to the sound discretion of the trial court, and its ruling thereon is not subject to review on appeal, except in case of manifest abuse.” *S. v. Whitfield, supra*(where many cases are cited); *S. v. Gibson,*229 N.C. 497, 50 S.E. 2d 520.

“There is no rule of law or practice that when a bill of indictment is found at one term the trial cannot be had till the next.” *S. v. Sultan,*142 N.C. 569, 54 S.E. 841. As to capital cases this rule was changed in 1949. G. S. N. C. 15-4.1.

In *S. v. Riley,*188 N.C. 72, 123 S.E. 303, the defendants excepted to being placed on trial the same term the bill of indictment was found, and so soon after the alleged theft they were denied the right to obtain necessary evidence. This Court held this was “a matter within the discretion of the trial judge, and not the basis of a valid exception, unless there has been manifest abuse, and on the facts presented, we are of opinion that no such abuse has been made to appear.”

In *S. v. Gibson, supra,*the defendant was found guilty of the capital crime of rape. The trial was set for the afternoon of the day following the appointment of counsel for him by the court. Counsel for the defendant moved for a continuance to have time to prepare the defense. Counsel gave no specific reason for his assertion that he had inadequate time to prepare the defense. The witnesses were few and resided in the neighbor*236hood; no complicated questions of law or fact were involved. In finding No Error in the trial below this Court said: “The record fails to show that the requested continuance would have enabled the prisoner and his counsel to obtain additional evidence or otherwise present a stronger defense.” See also *Avery v. Alabama,*308 U.S. 444, 84 L. Ed. 377.

*U. S. v. Nierstheimer,*166 F. 2d 87 (Petition for *Certiorari*denied 334 U.S. 850, 92 L. Ed. 1773), was a *habeas corpus*proceeding by the United States, on the relation of Coy Thompson against Walter Niers-theimer, Warden, Illinois State Penitentiary. Petitioner contended on 6 July 1931 in the Criminal Court of Cook County, Illinois, he was indicted, arraigned, tried, and convicted in a capital case all in one day, and that counsel appointed by the court defended him. He was sentenced to serve one hundred years in prison. The record supported by the testimony of the judge and others, though denied by the defendant, showed petitioner consented to trial by court, and that he had been consulted on two different days with counsel who represented him. Petitioner contended such expeditiousness denied him due process in that his counsel made no independent investigation, subpoenaed no witnesses, and asked for no continuance, as requested by him. Petitioner’s counsel testified petitioner never gave him the names of any witnesses to be subpoenaed. The court held that no standard length of time must elapse before defendant in a capital case should go to trial, and the facts of each case provide its own yardstick, but there must not be an idle ceremony of going through the motions of a trial, and a court should not move so rapidly as to ignore or violate the rights of the defendant to a fair trial. *Minton, C. J.*(now a Justice of the U. S. Supreme Court) speaking for the Court said: “Courts do not deny due process just because they act expeditiously. The law’s delay is the lament of society. ... If no witnesses are suggested or information furnished that would possibly lead to some material evidence or witnesses, the mere failure to delay in order to investigate would not be, in and of itself, a denial of due process.” The judgment of the District Court denying the petition was affirmed.

A request for a continuance should be based on sufficient grounds furthering justice. Such a request is properly denied where no substantial rights are prejudiced by proceeding promptly with the trial. 22 C.J.S., Grim. Law, sec. 483.

The petitioner, James W. Hackney, contends his constitutional rights were violated in that he told the court he would like to have some time to get some witnesses and prepare for trial, and that the court refused a continuance. The trial court asked him what witnesses he wanted. He gave the court no names of witnesses he wanted. He said in this proceeding in August 1953 he gave the judge no names; he didn’t have time to think because he had just heard he was charged with robbery. However, *237in tbe bearing of tbis proceeding in August 1953, three and one-balf years after January 1950, witb abundance of time to ponder and reflect on bis case, be still gives no names of any witnesses be wants.

Petitioner bas not even suggested that in tbe lonely hours of prison nights be can sometime recall tbe names of some “phantom witnesses” somewhere be wants an opportunity to investigate and subpoena in bis behalf.

Petitioner relies upon *Commonwealth v. O’Keefe,*298 Pa. 169, 148 Atl. 73. A careful reading of that case would indicate tbe defendant was denied an opportunity to have in court at bis trial real witnesses.

In tbe trial in January 1950 no complicated question of law was involved. Tbe facts were simple. Tbe petitioner bas totally failed to show that if a new trial is awarded him, be can obtain additional evidence, or can have a better defense. Tbe petitioner bas neither *allegata*nor *pro-bata*that be was in any way denied full opportunity to employ counsel at tbe January Term 1950 of Chatham County Superior Court. We cannot bold as a matter of law that tbe court in January 1950 in placing tbe defendant on trial denied him bis constitutional rights of confrontation, of due process, or that tbe court manifestly abused its discretion in refusing a continuance. *S. v. Whitfield, supra; S. v. Gibson, supra.*

Unless there is a statute requiring it, it is tbe general, if not tbe universal, rule in tbe United States that a preliminary bearing is not an essential prerequisite to tbe finding of an indictment. Such bearing is unknown to tbe common law. 27 Am. Jur., Indictments and Informations, p. 596; 22 C.J.S., Crim. Law, p. 484; *U. S. ex rel. Hughes v. Gault,*271 U.S. 142, 70 L. Ed. 875. We have no statute requiring a preliminary bearing, nor does tbe State Constitution require it. It was proper to try tbe petitioner upon a bill of indictment without a preliminary bearing. Tbe petitioner alleges in bis petition that tbe January Term 1950 of Chatham Superior Court was “a court of proper jurisdiction.”

*Stacy, G. J.,*speaking for tbe Court said in *S. v. Beal,*199 N.C. 278, p. 303, 154 S.E. 604: “Tbe foundation for tbe application of a new trial is tbe allegation of injustice arising from error, but for which a different result would likely have ensued, and tbe motion is for relief upon tbis ground. Unless, therefore, some wrong bas been suffered, there is nothing to relieve against. Tbe injury must be positive and tangible, and not merely theoretical.” See also *S. v. Gibson, supra.*

*People v. Hall,*413 Ill. 615, 110 N.E. 2d 249, was a Post-Conviction Hearing. Tbe Court said: “Tbe petitioner bas the burden of showing that be was deprived of a substantial constitutional right in tbe trial resulting in bis conviction.”

After a careful examination of all tbe facts brought out in tbe bearing on James W. Hackney’s petition under tbe statute, we reach tbe conclu*238sion ilo constitutional rights of J ames W. Hackney under the State Constitution, or U.’S. Constitution were violated at the trial in January 1950.

The judgment of Judge Williams denying relief is

Affirmed.''

JoiiNsoN and Bobbitt, JJ., dissent.