State v. Helms , 16 N.C. App. 162 ( 1972 )

PARKER, Judge.

Defendant first assigns error to the overruling of his motion for a continuance. It is well settled that a motion for continuance is ordinarily addressed to the sound discretion of the trial judge and that his ruling thereon is not subject to review absent a showing of an abuse of discretion. State v. Moses, 272 N.C. 509, 158 S.E. 2d 617. No abuse of discretion has been shown in the present case, nor does the record support defendant’s contention that by overruling the motion defendant was in any way deprived of effective assistance of counsel or that his constitutional right to a fair trial was in any way impaired. Defendant was represented at his trial by counsel of his own choosing employed by him some three weeks prior to the date his trial commenced, and the record discloses that the counsel understood at that time the date when defendant’s cases were calendared for trial.

There was ample evidence to sustain the jury’s verdict, and defendant’s motions for nonsuit were properly overruled. The State’s evidence, taken in the light most favorable to it, tended to show: Defendant’s automobile, traveling at a high speed at night on an 18-foot-wide road, crashed into an automobile and a truck which were parked along the side of the road while a flat tire on the automobile was being changed. The collision resulted in the deaths of four persons, including defendant’s sister who was riding with him in his automobile. Immediately following the crash, defendant and his sister were found lying outside of his automobile. Analysis of a sample of blood taken from defendant at the hospital after the crash revealed an alcoholic content of .19 percent. When defendant regained consciousness some weeks following the crash, he stated to the investigating highway patrolman that he had been the driver of his automobile when the collision occurred. This statement was made by the defendant after he had been fully advised by the patrolman of his constitutional rights and had voluntarily waived those rights.

Defendant cites the rule, followed in this State, that an extrajudicial confession, standing alone, cannot be used to prove the commission of a crime but that there must also be independent proof of the corpus delicti. This rule has no application to the present case. “The corpus delicti in criminal homicide involves two elements: (1) The fact of the death. (2) The existence of the criminal agency of another as the cause of death.” 41 C.J.S., Homicide, § 312, p. 5; State v. Hamilton, 1 N.C. App. 99, 160 S.E. 2d 79. There was here ample evidence aliunde the statement made by defendant to the patrolman to establish the corpus delicti.

The court’s charge to the jury, considered as a whole, was free from prejudicial error. In defendant’s trial and in the judgment appealed from we find

No error.

Judges Vaughn and Graham concur.