{ "id": 8561846, "name": "STATE v. PERCY BELL FEREBEE", "name_abbreviation": "State v. Ferebee", "decision_date": "1966-03-02", "docket_number": "", "first_page": "606", "last_page": "610", "citations": [ { "type": "official", "cite": "266 N.C. 606" } ], "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": "111 S.E. 2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "251 N.C. 423", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625933 ], "opinion_index": 0, "case_paths": [ "/nc/251/0423-01" ] }, { "cite": "191 S.E. 749", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628852 ], "opinion_index": 0, "case_paths": [ "/nc/211/0702-01" ] }, { "cite": "251 N.C. 218", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624573 ], "pin_cites": [ { "page": "228-229" } ], "opinion_index": 0, "case_paths": [ "/nc/251/0218-01" ] }, { "cite": "124 S.E. 629", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "188 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653817 ], "opinion_index": 0, "case_paths": [ "/nc/188/0357-01" ] }, { "cite": "149 S.E. 860", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "197 N.C. 548", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630226 ], "opinion_index": 0, "case_paths": [ "/nc/197/0548-01" ] }, { "cite": "154 N.C. 624", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653202 ], "opinion_index": 0, "case_paths": [ "/nc/154/0624-01" ] }, { "cite": "84 N.C. 813", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "152 N.C. 813", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273215 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/152/0813-01" ] }, { "cite": "97 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650573 ], "opinion_index": 0, "case_paths": [ "/nc/97/0404-01" ] }, { "cite": "86 S.E. 2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610638 ], "opinion_index": 0, "case_paths": [ "/nc/242/0119-01" ] } ], "analysis": { "cardinality": 498, "char_count": 9795, "ocr_confidence": 0.562, "pagerank": { "raw": 4.328552973938552e-07, "percentile": 0.9176146949107844 }, "sha256": "798f56ad5e1b988e5e8438896edac718f7eaa6f45b67acb794f4d5ed2138ad64", "simhash": "1:d2ab9ffa36dba57f", "word_count": 1668 }, "last_updated": "2023-07-14T18:16:51.556627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Moore, J., not sitting." ], "parties": [ "STATE v. PERCY BELL FEREBEE." ], "opinions": [ { "text": "Bobbitt, J.\nDefendant\u2019s purported assignments of error are not based on exceptions duly noted in apt time and are ineffectual. 1 Strong, N. C. Index, Appeal and Error \u00a7 19.\nDefendant\u2019s brief asserts the \u201cQuestion Involved\u201d is: \u201cDid the Court, in refusing to continu\u00e9 this case to a subsequent term, deprive the defendant of constitutional rights to which he was entitled?\u201d\n\u201cGranting 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.\u201d S. v. Ipock, 242 N.C. 119, 86 S.E. 2d 798; 1 Strong, N. C. Index, Criminal Law \u00a7 86. Defendant has failed to show abuse of discretion or that he has been deprived of a fair trial.\n\u201cIn the application of this fundamental principle (the right of confrontation) it has been held that in a capital felony the prisoner cannot waive his right to be present at any stage of the trial. Not only has he a right to be present; he must be present. S. v. Kelly, 97 N.C. 404; S. v. Dry, 152 N.C. 813. In felonies less than capital the right to be present can be waived only by the defendant himself (S. v. Jenkins, 84 N.C. 813), but in misdemeanors the right may be waived by the defendant through his counsel with the consent of the court. S. v. Dry, supra; S. v. Cherry, 154 N.C. 624.\u201d S. v. O\u2019Neal, 197 N.C. 548, 149 S.E. 860; S. v. Hartsfield, 188 N.C. 357, 124 S.E. 629; Cotton Mills v. Local 578, 251 N.C. 218, 228-229, 111 5.E. 2d 457. True, a sentence imposing corporal punishment may not be pronounced against a defendant in his absence. S. v. Brooks, 211 N.C. 702, 191 S.E. 749, and cases cited. Here, the judgment pronounced imposes no active or suspended sentence of corporal punishment. The fine and costs are collectible as provided in G.S. 15-185. See S. v. Bryant, 251 N.C. 423, 111 S.E. 2d 591.\nSince defendant has failed to show error, Judge Clarkson\u2019s judgment is affirmed.\nAffirmed.\nMoore, J., not sitting.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Attorney General Bruton and Assistant Attorney General Harrell for the State.", "W. B. Francis, Thad D. Bryson, Jr., and Felix E. Alley, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE v. PERCY BELL FEREBEE.\n(Filed 2 March, 1966.)\n1. Appeal and Error \u00a7 19; Criminal Law \u00a7 154\u2014\nExceptions which first appear in the tendered statement of the case on appeal are ineffectual.\n2. Criminal Law \u00a7 86\u2014\nA motion for continuance rests in the sound discretion of the trial court, and when it appears that a medical expert has testified from his examination of defendant that defendant was able to stand trial and defendant\u2019s counsel has presented a written instrument waiving appearance and authorizing counsel to enter a plea of guilty, no abuse of discretion is shown in refusing motion for continuance.\n3. Constitutional Law \u00a7 31\u2014\nA defendant may not waive his right to be present at any stage of the trial in a capital prosecution, but for a felony less than capital defendant himself may waive the right, and in a misdemeanor the right may be waived by defendant through his counsel with the consent of the court, and in such event the court may enter appropriate sentence, provided no corporal punishment, active or suspended, is imposed.\nMooke, J., not sitting.\nAppeal by defendant from Clarkson, J., July 1965 Session of SwaiN.\nAt July 1964 Session, the grand jury returned a true bill of indictment charging that defendant on June 13, 1964, unlawfully and wilfully operated a motor vehicle upon the public highways of North Carolina while under the influence of intoxicating liquor, a violation of G.S. 20-138.\nThe case was calendared for trial at the July 1964 Session, the October 1964 Session and the March 1965 Session; and at each of these sessions \u201cthe case was continued for the defendant.\u201d\nThe case was again calendared for trial on Monday, July 26, 1965, the first day of the July 1965 Session. Defendant \u201cwas not before the Court personally.\u201d His counsel, T. M. Jenkins, Esq., and Thad D. Bryson, Jr., Esq., were present.\nCounsel for defendant stated: Defendant was in his office at Andrews, N. C. In response to defendant\u2019s request, Mr. Jenkins had gone to defendant\u2019s office \u201cto see him about this case.\u201d Defendant requested Mr. Jenkins \u201cto see if the Court would permit counsel to waive his presence, enter a written plea of guilty to the charge as contained in the Bill of Indictment and at the same time to surrender his operator\u2019s license and abide by the judgment of the Court.\u201d\nThe solicitor, with the approval of the court, indicated to defendant\u2019s counsel that the procedure proposed by defendant would be acceptable. When defendant\u2019s said request was presented, \u201ca written plea of guilty had already been signed by the defendant, with his operator\u2019s license attached,\u201d but the solicitor, upon examination thereof, was of the opinion \u201cthe plea of guilty was not in the proper form.\u201d Thereupon, counsel for defendant \u201cdictated and presented to the Solicitor another plea of guilty which was acceptable,\u201d and advised the court \u201cthey would have the new plea of guilty signed and sworn to by the defendant and would return the same to the Court the following day, to wit: July 27, 1965.\u201d\nWhen court convened on Tuesday, July 27, 1965, instead of presenting, signed, the written plea of guilty drafted the preceding day, Mr. Bryson, one of defendant\u2019s attorneys, announced that defendant was sick, that he was in the hospital in Andrews and could not attend court; and, based upon the physical condition of defendant, his said counsel moved for a continuance of the case. To support the motion for a continuance, Mr. Bryson called Dr. Charles O. Van Gordor of Andrews, N. C., defendant\u2019s physician, who testified as to defendant\u2019s physical condition. No ruling was then made on said motion.\nWhen court convened on Wednesday, July 28, 1965, defendant \u201cwas called and failed and judgment nisi, sci fa and capias was entered.\u201d However, issuance of the capias was deferred pending examination of defendant by a court-appointed physician. An order then entered provided: (1) That Dr. William E. Mitchell, a physician of Swain County, make a physical examination of defendant and report his findings to the court; (2) that defendant submit to such examination by Dr. Mitchell; and (3) that defendant \u201cbe allowed to offer any other evidence he may have regarding his physical condition.\u201d\nOn July 29, 1965, Dr. Mitchell\u2019s report, sworn to and subscribed before a notary public, was submitted to Judge Clarkson. Dr. Mitchell reported he had examined defendant in the hospital in Andrews and set forth his findings and opinion as to defendant\u2019s physical condition. No other evidence bearing upon defendant\u2019s physical condition was presented.\nJudge Clarkson entered an order dated July 29, 1965, in which he found as a fact \u201cthat defendant is physically able to stand trial at this session of the Superior Court of Swain County.\u201d It was ordered that defendant \u201cappear before this Court at 9:00 A.M. on Friday, July 30, 1965 to stand trial for the charges set forth in the Bill of Indictment . . .\u201d After Judge Clarkson\u2019s said order had been entered and served on defendant, Mr. Bryson, on the same date, to wit, July 29, 1965, delivered in open court the following written authorization, sworn to and subscribed by defendant before a notary public on July 29, 1965, addressed to the presiding judge and to the solicitor, viz.:\n\u201cThis will authorize my attorney, T. M. Jenkins, and T. D. Bry-son, Jr., Esquire, to waive my presence at the call of the above-entitled case for disposition, and to waive my presence and enter a plea of guilty to the charges set out in the Bill of Indictment, to wit: That of operating a motor vehicle while under the influence of an intoxicant on one of the public highways of the State of North Carolina, the date of said offense being June 13, 1964.\n\u201cI likewise agree to abide by such judgment as the Court may deem fit to impose in this matter.\n\u201cI herewith surrender my operator\u2019s license being numbered 421117, for such disposition as the Court deems proper and in accordance with the laws of the State of North Carolina.\u201d\nThe foregoing is the document dictated by defendant\u2019s counsel on Monday, July 26, 1965, and then approved by the solicitor.\nPursuant to said authorization, Mr. Bryson, for defendant, waived defendant\u2019s presence and entered a plea of guilty of operating a motor vehicle on the public highways while under the influence of intoxicating liquor. Following the acceptance of said plea, the court heard testimony amply sufficient to support a verdict of guilty as charged.\nThe court, in its discretion, pronounced judgment imposing a fine of $500.00 and costs. The order for sci fa and capias was stricken.\nThe record contains this stipulation: \u201cIt is agreed by the Solicitor for the State and counsel for the defendant that during the proceedings and prior thereto trial counsel made no objections nor took any exceptions to any orders, rulings, or the judgment of the Court, and made no objection to any procedure, and that the exceptions and objections are made herein for the first time by counsel for the defendant on appeal.\u201d\nThe July 1965 Session adjourned on Friday, July 30, 1965. On August 3, 1965, defendant served written notice of appeal in accordance with G.S. 1-279 and G.S. 1-280. The notice contains the following: \u201c(E)xceptions to the said judgment to be hereinafter as-, signed.\u201d\nOriginally, defendant was allowed forty-five days from August 4, 1965, to make and serve case on appeal. However, the solicitor consented to an extension of time and stipulated that the case on appeal tendered on December 4, 1965, was in apt time. Defendant\u2019s exceptions first appear in the tendered statement of case on appeal.\nAttorney General Bruton and Assistant Attorney General Harrell for the State.\nW. B. Francis, Thad D. Bryson, Jr., and Felix E. Alley, Jr., for defendant appellant." }, "file_name": "0606-01", "first_page_order": 642, "last_page_order": 646 }