State v. . Sentelle

Per Curiam. The case on appeal fails to disclose error. On affidavit duly made, warrant issued out of the recorder’s court of Montgomery County charging that on or about' 27 March, 1937, defendant did unlawfully and willfully operate a motor vehicle on the *387 public highway of Montgomery County while under the influence of an intoxicant, contrary to the form of the statute. From judgment finding-defendant guilty of driving drunk and imposing jail sentence and fine he appealed to the Superior Court. When the case was called for trial in the Superior Court defendant moved for continuance on account of absence of a material witness, the wife of defendant. .The motion was denied. The question of granting or refusing a motion for the continuance of an action is peculiarly within the discretion of the court. Unless that discretion is abused, the decision of the court below is not subject to review on appeal. S. v. Banks, 204 N. C., 233, 167 S. E., 851. In the course of the argument of that motion “the solicitor for the State in open court agreed to admit, without objection, that the wife of the defendant, if present in court, would testify that the defendant at the time he was arrested by Sheriff Bruton was not under the influence of intoxicants without admitting the truthfulness thereof.” The record fails to show that defendant accepted this offer, or that the admission was excluded as evidence on the trial. On cross-examination of the sheriff, who was a witness for the State, defendant offered to show that on the night of the arrest the wife of defendant stated that the defendant was not under the influence of intoxicants and had drunk no liquor. This was properly excluded as hearsay. Defendant proposed to show by means of questions to his own witness, who had testified to his good character, that the witness had never heard of defendant using intoxicants in any form, and that the reputation of defendant in that particular is one of total abstinence and total sobriety. This evidence is clearly incompetent. “A party offering a character witness can only prove the general character of the person inquired about, but the witness of his own accord may say in what respect the character of such person is good or bad.” S. v. Nance, 195 N. C., 47, and cases cited. The evidence for the State tended to show that when seen driving his automobile on the public highway in Montgomery County on the night in question defendant was intoxicated. The defendant testified in his own behalf that he was not a drinking man, that he had drunk no liquor that night, and that he was not intoxicated. On this conflict of testimony the question was one for the jury. No exception is taken to the charge of the court. We have carefully considered the case and find No error.