{ "id": 8610638, "name": "STATE v. NOLAN M. IPOCK", "name_abbreviation": "State v. Ipock", "decision_date": "1955-04-13", "docket_number": "", "first_page": "119", "last_page": "121", "citations": [ { "type": "official", "cite": "242 N.C. 119" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "85 S.E. 2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606351 ], "opinion_index": 0, "case_paths": [ "/nc/241/0226-01" ] }, { "cite": "1 S.E. 2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "215 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629606 ], "opinion_index": 0, "case_paths": [ "/nc/215/0333-01" ] }, { "cite": "8 S.E. 2d 474", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "217 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608545 ], "opinion_index": 0, "case_paths": [ "/nc/217/0399-01" ] }, { "cite": "50 S.E. 2d 520", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "229 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12166634 ], "opinion_index": 0, "case_paths": [ "/nc/229/0497-01" ] }, { "cite": "46 S.E. 2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627737 ], "opinion_index": 0, "case_paths": [ "/nc/228/0615-01" ] }, { "cite": "81 S.E. 2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "240 N.C. 230", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596772 ], "opinion_index": 0, "case_paths": [ "/nc/240/0230-01" ] }, { "cite": "70 S.E. 2d 5", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "235 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625125 ], "opinion_index": 0, "case_paths": [ "/nc/235/0410-01" ] } ], "analysis": { "cardinality": 387, "char_count": 6737, "ocr_confidence": 0.581, "pagerank": { "raw": 2.727711220103762e-07, "percentile": 0.8307302858197524 }, "sha256": "4068337ee9d54dace79f3ab524fccae50fbe5ba11644ba97e71dfa8dcd25803e", "simhash": "1:82f3d72faf1f245d", "word_count": 1167 }, "last_updated": "2023-07-14T17:51:17.837681+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BaRNHill, C. J., took no part in the consideration or decision of this case." ], "parties": [ "STATE v. NOLAN M. IPOCK." ], "opinions": [ { "text": "Higgins, J.\nThe defendant\u2019s assignment of error No. 1A is to the refusal of the court to continue the case on the ground of defendant\u2019s illness. The only evidence presented on the motion to continue was the certificate of Dr. Duffy who advised \u201chome care,\u201d but does not say the defendant is unable to stand trial or that a trial would endanger his health. Granting or denying a motion for continuance rests in the sound discretion of the presiding judge and his decision will not be disturbed on appeal, except for abuse of discretion or a showing the defendant has been deprived of a fair trial. S. v. Birchfield, 235 N.C. 410, 70 S.E. 2d 5; S. v. Hackney, 240 N.C. 230, 81 S.E. 2d 778; S. v. Culberson, 228 N.C. 615, 46 S.E. 2d 647; S. v. Gibson, 229 N.C. 497, 50 S.E. 2d 520. No abuse of discretion is shown.\nAssignments of error Nos. 15, 24 and 25 relate to the refusal of the court to grant the motions for nonsuit, to set aside the verdict, and to arrest the judgment. The evidence made out a case for the jury and no defect appears upon the face of the record. The assignments are without merit.\nDuring the course of the trial the defendant sought to introduce evidence as to his physical condition the day before and on the day of the trial. Upon objection, the evidence was excluded. The defendant sought to argue to the jury that the defendant\u2019s illness accounted for his inability to go upon the stand and testify in his own defense. The court interrupted counsel and cautioned the jury not to consider the argument. The testimony as to defendant\u2019s physical condition at the trial in September, 1954, could have no bearing on the issue before the jury as to whether the defendant operated a truck upon the public highway on 2 February 1953, while he was under the influence of liquor. The evidence was properly excluded and the instruction to the jury not to consider the argument was warranted. S. v. Kiziah, 217 N.C. 399, 8 S.E. 2d 474; S. v. Page, 215 N.C. 333, 1 S.E. 2d 887.\nThe court\u2019s charge as to what constitutes reasonable doubt is in accord with the decision of this Court in S. v. Hammonds, 241 N.C. 226, 85 S.E. 2d 133, and cases there cited. Assignments of error Nos. 18, 19 and 23 relating thereto are without merit.\nThe record leaves the impression the defendant\u2019s principal effort in the trial was directed not to the question of his guilt or innocence of the charge, but to his physical condition at the time of the trial. Two oflicers testified the defendant was intoxicated at the time he drove the truck upon the public highway and that a partially filled bottle of whisky was in the seat of the truck. There was no evidence to the contrary. That the jury believed the officers does not present a question for review on appeal.\nNo error.\nBaRNHill, C. J., took no part in the consideration or decision of this case.", "type": "majority", "author": "Higgins, J." } ], "attorneys": [ "Attorney-General McMullan and Assistant Attorney-General Bruton for the State.", "Charles L. Abernethy, Jr., for defendant, appellant." ], "corrections": "", "head_matter": "STATE v. NOLAN M. IPOCK.\n(Filed 13 April, 1955.)\n1. Criminal Law \u00a7 44\u2014\nA motion for a continuance is addressed to tide discretion of the trial judge, and refusal of the motion upon certificate of a physician, stating that the physician had advised home care for defendant, but which does not state the defendant was unable to stand trial or that a trial would endanger his health, does not show abuse of discretion.\n3. Automobiles \u00a7 30d\u2014\nTestimony of officers that defendant was intoxicated at the time he drove a truck upon a public highway, and that a partially filled bottle of whiskey was found in the seat of the truck, is sufficient to support a conviction of driving while under the influence of intoxicating liquor, and defendant\u2019s motion for nonsuit, to set aside the verdict, and to arrest the judgment, were properly denied.\n3. Criminal Law \u00a7 41i\u2014\nDefendant sought to introduce evidence as to his physical condition the day before and on the day of trial for the purpose of accounting for his failure to testify in his own defense. Held: Defendant\u2019s physical condition at the time of trial was irrelevant to the issue of whether the defendant was intoxicated at the time of driving the truck some six months prior thereto, and the evidence was properly excluded and the court properly interrupted counsel in arguing the matter to the jury.\n4. Criminal Law \u00a7 53b\u2014\nThe court\u2019s charge on reasonable doubt held without error.\nBarnt-iill, C. J., took no part in the consideration or decision of this case.\nAppeal by defendant from Martin, S. J., September 1954 Term, CRAVEN.\nCriminal prosecution upon an indictment charging the operation of a vehicle upon the public highway while under the influence of liquor or narcotic drugs.\nWhen the ease was called for trial on 17 September 1954, defendant\u2019s counsel moved for continuance on the ground the defendant was not physically able to attend court. In support of the motion he presented the following certificate: \u201c9/16/54. Mr. Nolan M. Ipock was seen and treated in my office today. Diagnosis \u2014 -arthritis, back and shoulders. Diarrhea and vomiting \u2014 3 hours. Advised home care. Respectfully, Charles Duffy, M.D.\u201d\nThe court overruled the motion on the ground the doctor\u2019s certificate did not present sufficient cause for a continuance. The defendant was called and upon his failure to answer, capias was issued, he was brought into court, and placed \u00fcpon trial upon his plea of not guilty.\nThe State offered the evidence of Highway Patrolman Herring and Constable Miller who testified they observed the defendant driving a truck upon the public highway in Craven County on 2 February 1953, and in the language of the patrolman, the truck was being driven \u201cfrom one side of the road to the other. He was very much under the influence. He was drunk enough to stagger back and forth on the road. He more or less mumbled everything he said so I couldn\u2019t understand.\u201d The constable testified, \u201cHe was right much intoxicated with liquor or some drug. He was staggering.\u201d Both officers testified a part of a pint of whisky was found in the seat of the truck.\nThe defendant called Calvin Hawks as a witness, who would have testified if permitted, (1) that the defendant was in court on Wednesday before the trial began on Friday; (2) that the witness was present when Dr. Duffy examined the defendant and would have testified as to statements made by Dr. Duffy with respect to the defendant\u2019s physical condition and the treatment prescribed. Upon objection, the evidence was excluded. The defendant excepted.\nThe defendant made timely motions for judgment of nonsuit, which were overruled, and the defendant excepted.\nThe jury returned a verdict of guilty and from judgment pronounced, the defendant appealed.\nAttorney-General McMullan and Assistant Attorney-General Bruton for the State.\nCharles L. Abernethy, Jr., for defendant, appellant." }, "file_name": "0119-01", "first_page_order": 161, "last_page_order": 163 }