{ "id": 8569743, "name": "STATE OF NORTH CAROLINA v. JACK W. RIGSBEE", "name_abbreviation": "State v. Rigsbee", "decision_date": "1974-10-10", "docket_number": "No. 24", "first_page": "708", "last_page": "717", "citations": [ { "type": "official", "cite": "285 N.C. 708" } ], "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": "203 S.E. 2d 660", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": -1 }, { "cite": "21 N.C. App. 188", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555002 ], "year": 1974, "opinion_index": -1, "case_paths": [ "/nc-app/21/0188-01" ] }, { "cite": "139 S.E. 2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "263 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571759 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/263/0533-01" ] }, { "cite": "171 S.E. 2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "422" } ], "opinion_index": 0 }, { "cite": "276 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560350 ], "year": 1970, "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0123-01" ] }, { "cite": "184 S.E. 2d 845", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "280 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569578 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/280/0001-01" ] }, { "cite": "184 S.E. 2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "280 N.C. 154", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570226 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/280/0154-01" ] }, { "cite": "93 S.E. 2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "244 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219561 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/244/0380-01" ] }, { "cite": "154 S.E. 730", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1930, "pin_cites": [ { "page": "731" } ], "opinion_index": 0 }, { "cite": "199 N.C. 429", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603127 ], "year": 1930, "pin_cites": [ { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/nc/199/0429-01" ] }, { "cite": "169 S.E. 2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559179 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0537-01" ] }, { "cite": "178 S.E. 2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567347 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0680-01" ] }, { "cite": "163 S.E. 2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560392 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0380-01" ] }, { "cite": "172 S.E. 2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 391", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561509 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0391-01" ] }, { "cite": "188 S.E. 2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "335" } ], "opinion_index": 0 }, { "cite": "281 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574848 ], "year": 1972, "pin_cites": [ { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0287-01" ] }, { "cite": "275 U.S. 192", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6139499 ], "weight": 3, "year": 1927, "opinion_index": 0, "case_paths": [ "/us/275/0192-01" ] }, { "cite": "374 U.S. 23", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8495 ], "weight": 3, "year": 1963, "opinion_index": 0, "case_paths": [ "/us/374/0023-01" ] }, { "cite": "85 Harv. L. Rev. 237", "category": "journals:journal", "reporter": "Harv. L. Rev.", "year": 1971, "pin_cites": [ { "page": "244" } ], "opinion_index": 0 }, { "cite": "490 F. 2d 1097", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 228414 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/f2d/490/1097-01" ] }, { "cite": "403 U.S. 469", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": 0 }, { "cite": "92 S.Ct. 26", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1971, "opinion_index": 0 }, { "cite": "30 L.Ed. 2d 120", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1971, "opinion_index": 0 }, { "cite": "404 U.S. 874", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6348970, 6349347, 6349126 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/404/0874-01", "/us/404/0874-03", "/us/404/0874-02" ] }, { "cite": "403 U.S. 443", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12027286 ], "weight": 11, "year": 1971, "pin_cites": [ { "page": "469" }, { "page": "585" }, { "page": "2040" }, { "page": "585-86" }, { "page": "606" }, { "page": "2058" } ], "opinion_index": 0, "case_paths": [ "/us/403/0443-01" ] }, { "cite": "194 S.E. 2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "282 N.C. 503", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566787 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/282/0503-01" ] }, { "cite": "206 S.E. 2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565287 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0509-01" ] }, { "cite": "390 U.S. 234", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6169464 ], "weight": 3, "year": 1968, "opinion_index": 0, "case_paths": [ "/us/390/0234-01" ] }, { "cite": "90 S.Ct. 36", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1969, "opinion_index": 0 }, { "cite": "24 L.Ed. 2d 124", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1969, "opinion_index": 0 }, { "cite": "396 U.S. 869", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11373510 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/us/396/0869-01" ] }, { "cite": "395 U.S. 752", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1772077 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/395/0752-01" ] }, { "cite": "82 S.Ct. 23", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1961, "opinion_index": 0 }, { "cite": "7 L.Ed. 2d 72", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1961, "opinion_index": 0 }, { "cite": "368 U.S. 871", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6288926, 6288457, 6287856, 6287568, 6288148, 6288670 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/us/368/0871-06", "/us/368/0871-04", "/us/368/0871-02", "/us/368/0871-01", "/us/368/0871-03", "/us/368/0871-05" ] }, { "cite": "367 U.S. 643", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1785580 ], "weight": 3, "year": 1961, "opinion_index": 0, "case_paths": [ "/us/367/0643-01" ] }, { "cite": "134 S.E. 2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "261 N.C. 263", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572845 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/261/0263-01" ] }, { "cite": "128 S.E. 2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "258 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560779 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/258/0349-01" ] }, { "cite": "388 U.S. 14", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167274 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/388/0014-01" ] }, { "cite": "50 S.E. 2d 520", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "229 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12166634 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/nc/229/0497-01" ] }, { "cite": "185 S.E. 2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571880 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0306-01" ] }, { "cite": "188 S.E. 2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574551 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0198-01" ] }, { "cite": "148 S.E. 2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "267 N.C. 661", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560373 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0661-01" ] }, { "cite": "158 S.E. 2d 617", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "272 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573790 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/272/0509-01" ] }, { "cite": "174 S.E. 2d 526", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563327 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0690-01" ] } ], "analysis": { "cardinality": 975, "char_count": 22838, "ocr_confidence": 0.592, "pagerank": { "raw": 6.786772247270346e-07, "percentile": 0.9636978835445619 }, "sha256": "11ade2e4abd39f6928d5aa0b88bd47e68d75737164ef3d37d827cda4767fed14", "simhash": "1:ea432560369c2675", "word_count": 3886 }, "last_updated": "2023-07-14T22:42:08.335271+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Justice Bobbitt not sitting." ], "parties": [ "STATE OF NORTH CAROLINA v. JACK W. RIGSBEE" ], "opinions": [ { "text": "MOORE, Justice.\nDefendant in his petition for certiorari brings forward four assignments of error. He first assigns as error the denial of his motion for a continuance based upon the absence of the witness Mary Helen Allen.\nThe crimes for which defendant was tried were alleged to have occurred on 21 May 1973. Defendant\u2019s counsel conferred with defendant in early or mid-June 1973, at which time he was informed of the substance of a conversation between defendant and a Negro female known to him at that time only as Helen. On 31 August 1973 defendant\u2019s counsel filed written motion for a disclosure by the State of the identity and address of this female who was alleged to be a confidential informant. This motion was allowed by the court, and the case was continued from 10 September 1973 to 13 September 1973, on defendant\u2019s motion, to enable him to locate the witness. Mary Helen Allen, the witness in question, was located on 10 September 1973, and defendant\u2019s counsel conferred with her concerning her knowledge of the facts pertinent to the charges against defendant. At that time she was confined in the Cumberland County jail pending trial on 12 September 1973 on a charge of soliciting for prostitution. She was then served with a subpoena to appear in court on 13 September 1973. She failed to appear on 13 September, and an instanter capias ad testificandum was issued for her arrest. She was not found.\nAfter finding the facts substantially as set out above, the trial' court \u2014 after further finding that the trial had been delayed once for the sole purpose of allowing the defendant to locate Mary Helen Allen \u2014 overruled defendant\u2019s motion for a continuance.\nA motion for continuance is ordinarily addressed to the sound discretion of the trial court, and its ruling thereon is not subject to review absent an abuse of discretion. 2 Stronsr, N. C. Index 2d, Criminal Law \u00a7 91 (1967) ; State v. Baldwin, 276 N.C. 690, 174 S.E. 2d 526 (1970) ; State v. Moses, 272 N.C. 509, 158 S.E. 2d 617 (1968) ; State v. Stinson, 267 N.C. 661, 148 S.E. 2d 593 (1966).\nContinuances should not be granted unless the reasons therefor are fully established. Even though G.S. 1-175 and G.S. 1-176 that required an affidavit showing the grounds for continuance have now been repealed, we still think, as a general rule, it is desirable that a motion for continuance be supported by such affidavit. State v. Cradle, 281 N.C. 198, 188 S.E. 2d 296 (1972) ; State v. Stepney, 280 N.C. 306, 185 S.E. 2d 844 (1972) ; State v. Gibson, 229 N.C. 497, 50 S.E. 2d 520 (1948). No affidavit was filed in this case stating what Mary Helen Allen ' would have testified although defendant\u2019s counsel had talked to her just three days before the trial. It would have been an easy matter for counsel to have filed such an affidavit.\nIn the Court of Appeals defendant contended that the trial court abused its discretion in denying his motion for continuance until he could find and produce the witness Mary Helen Allen. Defendant, in this Court, for the first time, contends that the court\u2019s ruling amounted to a practical invalidation of his right under the Sixth Amendment to obtain witnesses by compulsory process, citing Washington v. Texas, 388 U.S. 14, 18 L.Ed. 2d 1019, 87 S.Ct. 1920 (1967). Although the constitutional question was not timely raised, we have considered it. Washington is distinguishable from the present case. In Washington the Court held that defendant was denied his constitutional right to have compulsory process for obtaining witnesses in his favor where the State by statute prevented persons charged as principals, accomplices, or accessories in the same crime from testifying in behalf of one another while permitting such persons to testify in behalf of the prosecution. In the present case, a subpoena was issued for the witness, and on her failure to appear an instanter capias ad testificandum to compel her attendance was issued. She was not prevented by the State from testifying, but instead, if she had been found, she would have been brought into court as a witness, willingly or unwillingly. Defendant was denied no right to obtain the witness by compulsory process.\nHowever, a motion for a continuance based on a right guaranteed by the Federal and State Constitutions presents a question of law, and the order of the court is reviewable. State v. Cradle, supra; State v. Baldwin, supra; State v. Lane, 258 N.C. 349, 128 S.E. 2d 389 (1962) ; State v. Phillip, 261 N.C. 263, 134 S.E. 2d 386 (1964). As stated in State v. Cradle, supra:\n\u201cThe right to the assistance of counsel and the right to face one\u2019s accusers and witnesses with other testimony are guaranteed by the Sixth Amendment to the Federal Constitution which is made applicable to the States by the Fourteenth Amendment, and by Article I, Sections 19 and 23 of the Constitution of North Carolina. 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. [Citations omitted.]\u201d\nThe facts in this case show that defendant\u2019s counsel had an opportunity to confer with his client and possible witnesses over a period of some three months. During that time he had ample opportunity to prepare his defense. The name and address of the informant were furnished defendant, and the case was continued until counsel could confer with her. Under these facts, no abuse of discretion has been shown and no violation of defendant\u2019s constitutional rights to due process under the Sixth and Fourteenth Amendments has been established.\nDefendant\u2019s first assignment of error is overruled.\nDefendant next assigns as error the trial court\u2019s denial of his motion to suppress the $60 in marked bills that were seized during the search of his home and admitted into evidence over his objection. It is stipulated that the search was made under a valid search warrant that listed only marijuana as the item sought.\nThe Fourth Amendment to the Constitution of the United States provides in part: . . no warrants shall issue, . . . but upon probable cause, . . . and particularly describing the place to be searched and the persons or things to be seized.\u201d The Fourth Amendment has been made applicable to the states by the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 6 L.Ed. 2d 1081, 81 S.Ct. 1684, reh. den. 368 U.S. 871, 7 L.Ed. 2d 72, 82 S.Ct. 23 (1961).\nIn this case the money seized was not particularly described. However, an exception to the strict mandate of the Fourth Amendment is the \u201cplain view rule.\u201d Under this exception, an item is lawfully seized even though it is not listed in the warrant if the officer is at a place where he has a legal right to be and if the item seized is in plain view. Chimel v. California, 395 U.S. 752, 23 L.Ed. 2d 685, 89 S.Ct. 2034, reh. den. 396 U.S. 869, 24 L.Ed. 2d 124, 90 S.Ct. 36 (1969) ; Harris v. United States, 390 U.S. 234, 19 L.Ed. 2d 1067, 88 S.Ct. 992 (1968) ; State v. Carey, 285 N.C. 509, 206 S.E. 2d 222 (1974) ; State v. Allen, 282 N.C. 503, 194 S.E. 2d 9 (1973).\nThe officers in the present case had a legal right to be in defendant\u2019s home, and there was ample evidence to support the court\u2019s finding that the money seized was in plain view of the officers. Before the money was introduced, a voir dire examination was held at the request of the defendant. The investigating officer testified: \u201cI had looked behind the speaker for drugs and when I stepped back and looked up with the flashlight I saw what appeared to be currency on top of the speaker cabinet. ... I had not been told that this [the currency] was one of the items that we were to search for.\u201d The court then asked Mr. Harrah: \u201cWas it necessary for you to move or open any object in'order to view or see these bills?\u201d He answered: \u201cNo, sir. When I stepped away from the speaker, after searching behind it, the flashlight beam revealed what I thought was the currency, that\u2019s all there was to it.\u201d The court: \u201cNo physical items were moved in order to reveal the currency?\u201d Answer: \u201cNo, sir. Not to reveal it.\u201d There is also evidence from the defendant that he heard one of the investigating officers make the statement, when the currency was found that it was a \u201clucky find.\u201d\nDefendant contends, however, that the money should have been suppressed under the decision of the United States Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed. 2d 564, 91 S.Ct. 2022, reh. den. 404 U.S. 874, 30 L.Ed. 2d 120, 92 S.Ct. 26 (1971). Defendant bases his argument on that part of the Coolidge opinion (II-C) in which Mr. Justice Stewart, writing for the majority, states that discovery of items under the plain view rule must be \u201cinadvertent.\u201d 403 U.S. at 469, 29 L.Ed. 2d at 585, 91 S.Ct. at 2040. It is noteworthy that only three Justices concurred with Mr. Justice Stewart in part II-C of the opinion. Mr. Justice Stewart said, at 403 U.S. 469-71, 29 L.Ed. 2d at 585-86, 91 S.Ct. at 2040:\n\u201cThe second limitation [on the plain view doctrine] is that the discovery of evidence in plain view must be inadvertent. The rationale of the exception to the warrant requirement ... is that a plain-view seizure will not turn an initially valid (and therefore limited) search, into a \u2018general\u2019 one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as \u2018per se unreasonable\u2019 in the absence of \u2018exigent circumstances.\u2019 \u201d\nThe inadvertence aspect of the Coolidge case has caused a good deal of controversy and confusion. United States v. Bradshaw, 490 F. 2d 1097, 1101 n. 3 (4th Cir. 1974) ; The Supreme Court, 1970 Term, 85 Harv. L. Rev. 237, 244 (1971). As said by Mr. Justice Black in a concurring and dissenting opinion in Coolidge: \u201c. . . [T]he prior holdings of this Court not only fail to support the majority statement [respecting the requirement of inadvertence], they flatly contradict it. . . .\u201d 403 U.S. at 506, 29 L.Ed. 2d at 606, 91 S.Ct. at 2058, citing Ker v. California, 374 U.S. 23, 10 L.Ed. 2d 726, 83 S.Ct. 1623 (1963) ; Marron v. United States, 275 U.S. 192, 72 L.Ed. 231, 48 S.Ct. 74 (1927). See also footnote 5 to Mr. Justice Black\u2019s concurring and dissenting opinion in Coolidge. As Professor Brandis stated in 1 Stansbury\u2019s North Carolina Evidence \u00a7 121a, p. 372 (Bran-dis Rev. 1973) : \u201cWhen an officer\u2019s presence at the scene is lawful (and at least if he did not anticipate finding such evidence), he may, without a warrant, seize evidence which is in plain sight and which he reasonably believes to be connected with the commission of a crime, even though the \u2018incident to arrest\u2019 doctrine would not apply; and such evidence is admissible.\u201d In a footnote to this section Professor Brandis states: \u201cThe parenthetical clause in the text is inspired by Coolidge v. New Hampshire, 403 U.S. 443 (1971), to which are referred those readers possessing a capacity superior to that of this writer to determine what was decided by whom.\u201d\nIn the present case the investigating officer testified that he had not been told by his superiors that the money was one of the items he was to search for at defendant\u2019s home. The trial court found after the voir dire that \u201cduring the search of the defendant\u2019s apartment for marijuana, on May 21, 1973, [the officer] called the the attention of [another officer], to reveal the currency lying on top of a stereo speaker. . . .\u201d Thus, the trial judge found that the officers were searching for marijuana at defendant\u2019s apartment. In fact, the officers found another complete lid and some pipes and some \u201cother vegetable matter.\u201d\nThere is ample evidence in the record to support not only the trial judge\u2019s finding that the currency was in plain view but also his finding that the search of the apartment was for marijuana and not for the currency. As Justice Higgins, writing for this Court, stated in State v. Accor and State v. Moore, 281 N.C. 287, 291, 188 S.E. 2d 332, 335 (1972) : \u201cIt is well established in North Carolina that findings of fact made by the trial judge and conclusions drawn therefrom on the voir dire examination are binding on the appellate courts if supported by evidence.\u201d Accord, State v. Austin, 276 N.C. 391, 172 S.E. 2d 507 (1970) ; State v. Wright, 274 N.C. 380, 163 S.E. 2d 897 (1968).\nWe, therefore, contrary to defendant\u2019s contention, hold that the trial judge did not err in failing to suppress the money discovered in plain view in the defendant\u2019s apartment.\nDefendant next assigns as error the denial of his motion for nonsuit at the close of the State\u2019s evidence. Defendant introduced evidence, and by doing so waived his right to except on appeal to the denial of his motion for nonsuit at the close of the State\u2019s evidence. G.S. 15-173. His exception to the denial of his motion for nonsuit made at the close of all the evidence raises the question of the sufficiency of all the evidence to go to the jury. State v. McWilliams, 277 N.C. 680, 178 S.E. 2d 476 (1970) ; State v. Robbins, 275 N.C. 537, 169 S.E. 2d 858 (1969). Under G.S. 15-173.1 the sufficiency of the evidence of the State in a criminal case is reviewable upon an appeal without regard to. whether a motion has been made pursuant to G.S. 15-173.\nAs stated in State v. Johnson, 199 N.C. 429, 431, 154 S.E. 730, 731 (1930), \u201c. . . [I]f there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury.\u201d Or, as Justice Higgins said in State v. Stephens, 244 N.C. 380, 93 S.E. 2d 431 (1956), \u201c. . . [T]here must be substantial evidence of all material elements of the offense to withstand the motion to dismiss.\u201d\nOn motion for nonsuit, only the evidence favorable to the State is considered, and contradictions and discrepancies, even in the State\u2019s evidence, are for the jury and do not warrant nonsuit. State v. Price, 280 N.C. 154, 184 S.E. 2d 866 (1971) ; State v. Murphy, 280 N.C. 1, 184 S.E. 2d 845 (1971). Considering all the evidence in the light most favorable to the State, as we are required to do, we think the facts here disclosed constitute ample evidence of defendant\u2019s guilt. Defendant admitted that he smoked marijuana, and that on the day in question he had four lids of marijuana in his possession. He also admitted that he sold three of these to Curtis Douglas for $60. This is sufficient evidence to withstand defendant\u2019s motion for judgment as of nonsuit. His evidence in defense was for the jury. This assignment of error is overruled.\nFinally defendant contends the trial court erred by failing to properly charge the jury with regard to the defense of entrapment. Defendant does not set out in this assignment what the court should have charged. We have held, interpreting Rule 19 of the Rules of Practice in the Supreme Court, that \u201cassignments of error to the charge should quote the portion of the charge to which the appellant objects, and assignments based on failure to charge should set out appellant\u2019s contention as to what the court should have charged.\u201d State v. Kirby, 276 N.C. 123, 131, 171 S.E. 2d 416, 422 (1970). State v. Baldwin, supra; State v. Wilson, 263 N.C. 533, 139 S.E. 2d 736 (1965).\nDespite the failure of the defendant to set out what the court should have charged, we have carefully examined the entire charge. The only evidence offered on entrapment was defendant\u2019s statement: \u201cAfter persuasion and threats I did' give the three bags of marijuana to Curtis Douglas. . . . The persuasions and threats were made by the confidential informant Mary Helen Allen.\u201d Defendant had known Mary Helen Allen for some time. He testified that he had known for a month or two that she was a prostitute. She had been in his home on at least two occasions before the night in question, and on one of these occasions he had smoked marijuana with her.\nConsidering all the evidence, defendant received all the instructions on the law of entrapment to which he was entitled. This assignment of error is overruled.\nExamination of the entire record discloses that defendant has had a fair trial free from prejudicial error. The decision of the Court of Appeals is affirmed.\nAffirmed.\nChief Justice Bobbitt not sitting.", "type": "majority", "author": "MOORE, Justice." } ], "attorneys": [ "Attorney General Robert Morgan and Associate Attorney William, Woodward Webb for the State.", "Donald W. Grimes for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JACK W. RIGSBEE\nNo. 24\n(Filed 10 October 1974)\n1. Criminal Law \u00a7 91 \u2014 motion for continuance \u2014 discretionary matter\nA motion for continuance is ordinarily addressed to the sound discretion of the trial court, and its ruling thereon is not subject to review absent an abuse of discretion.\n2. Criminal Law \u00a7 91 \u2014 motion for continuance \u2014 necessity for supporting affidavit\nContinuances should not be granted unless the reasons therefor are fully established, and though there is no statutory requirement that an affidavit be filed showing the grounds for continuance, it is desirable that a motion for continuance be supported by such affidavit.\n3. Criminal Law \u00a7 91\u2014 motion for continuance to produce witness \u2014 denial proper\nThe trial court did not abuse its discretion in denying defendant\u2019s motion for continuance in order to produce a witness where the evidence showed that defendant\u2019s counsel had an opportunity to confer with his client and possible witnesses over a period of some three months, counsel had ample opportunity to prepare his defense, the name and address of a confidential informant were furnished defendant, and the case was continued until counsel could confer with her.\n4. Searches and Seizures \u00a7 4\u2014 item not listed in search warrant: \u2014 plain view \u2014 seizure permissible\nAn item is lawfully seized even though it is not listed in a search warrant if the officer is at a place where he has a legal right to be and if the item seized is in plain view.\n5. Criminal Law \u00a7 84; Searches and Seizures \u00a7 4 \u2014 search for marijuana \u2014 currency in plain view \u2014 admissibility\nIn a prosecution for possession of marijuana with intent to distribute and distribution, the trial court did not err in refusing to suppress currency seized during a search of defendant\u2019s home pursuant to a warrant listing only marijuana as the item sought where the evidence was sufficient to support the trial judge\u2019s finding that the currency was in plain view and that the search of the apartment was for marijuana and not for the currency.\n6. Criminal Law \u00a7 164 \u2014 denial of motion for nonsuit at close of State\u2019s evidence \u2014 waiver of right to except\nDefendant introduced evidence and by doing so waived his right to except on appeal to the denial of his motion for nonsuit at the close of the State\u2019s evidence. G.S. 15-173.\n7. Criminal Law \u00a7 164 \u2014 sufficiency of evidence \u2014 review on appeal\nUnder G.S. 15-173.1 the sufficiency of the evidence of the State in a criminal case is reviewable upon an appeal without regard to whether a motion has been made pursuant to G.S. 15-173.\n8. Narcotics \u00a7 4 \u2014 possession and distribution of marijuana \u2014 sufficiency of evidence\nIn a prosecution for possession of marijuana with intent to distribute and distribution, evidence was sufficient to withstand defendant\u2019s motion for nonsuit where it included admissions by defendant that he smoked marijuana, that on the day in question he had four lids of marijuana in his possession, and that he sold three of the lids to an SBI agent for $60.\n9. Criminal Law \u00a7 163 \u2014 assignment of error to charge \u2014 setting out proper charge\nDefendant\u2019s assignment of error to the trial court\u2019s charge on entrapment should have set out what the court should have charged.\nChief Justice Bobbitt not sitting.\nON certiorari to review the decision of the Court of Appeals, reported in 21 N.C. App. 188, 203 S.E. 2d 660 (1974), which found no error in the trial before Canaday, J., at the 10 September 1973 Session of Cumberland Superior Court.\nDefendant was tried on a two-count bill of indictment charging him with possession of marijuana with intent to distribute and with distribution. From verdicts of guilty of both counts and sentences imposed, defendant appealed. The Court of Appeals affirmed,' and we allowed certiorari on 4 June 1974.\nThe trial was originally scheduled for 10 September 1973. Prior to trial, defendant moved the court to order disclosure of the identity and the last known address of the confidential informant who had provided information to the State which led to defendant\u2019s arrest. The court ordered the State to disclose this information and continued the trial from 10 September 1973 to 13 September 1973, in order that defendant might have an opportunity to locate said confidential informant and to discover what, if any, favorable information she might provide the defendant. The informant, Mary Helen Allen, was located on the evening of 10 September 1973, and defense counsel conversed with her concerning her knowledge of the facts pertinent to the prosecution. The informant was served with a subpoena to appear in court on 13 September 1973.\n\u2022\u2022 At defendant\u2019s trial on 13 September 1973, the informant failed to appear. Defendant again moved for a continuance upon the grounds that the informant was an indispensable defense witness and that the defense would be irreparably injured by her absence from the trial. The court issued an instanter capias ad testificandum for her arrest, but denied defendant\u2019s motion for further continuance. The trial proceeded without the witness.\nThe State\u2019s \u2022 evidence tended to show that the defendant, a Fayetteville police officer, sold three lids of marijuana, each containing about twenty grams, to a special agent of the State Bureau of Investigation on 21 May 1973 at defendant\u2019s home at 5900 Monica Street, Fayetteville. The agent, who was accompanied by the informant, paid for the marijuana with $60 in marked bills. Later that evening, police officers arrested defendant and took him to the Fayetteville Police Department where a valid search warrant, specifically listing marijuana as the item sought, was read to him. The officers then returned with defendant to his home and searched the premises. Another single lid of marijuana, along with pipes and \u201cother vegetable matter,\u201d was discovered during this search. The marked bills were also found on one of defendant\u2019s stereo speakers in the living room area, the tops of which speakers were six to seven feet off the floor.\nAttorney General Robert Morgan and Associate Attorney William, Woodward Webb for the State.\nDonald W. Grimes for defendant appellant." }, "file_name": "0708-01", "first_page_order": 740, "last_page_order": 749 }