State v. Tyler, 4 N.C. App. 682 (1969)

May 28, 1969 · North Carolina Court of Appeals · No. 695SC268

4 N.C. App. 682

STATE OF NORTH CAROLINA v. WILLIAM FRANK TYLER

No. 695SC268

(Filed 28 May 1969)

Criminal Law § 154— appeals irom consolidated trial — one record on appeal

Where two or .'more cases are consolidated and' tried, together as one case and there are two or more appeals, arising from the action, ordinarily only one copy of the record and the proceedings in the trial tribunal should be filed in the Court of Appeals. Court of Appeals Rule No. 19(b).

Appeal by defendant from Bundy, J., 12 December 1968 Session, New Hanover Superior Court.

The defendant appellant, William Franklin Tyler, and one Robie C. Allen were tried jointly upon identical bills of indictment, except for the name of the defendant, charging felonious breaking and entering, larceny, and receiving, and also except as to the receiving charge in the Tyler case where the defendant Tyler’s name erroneously appears as the owner of the property.

The State offered evidence which tended to show that William Franklin Tyler and Robie C. Allen on 19 October 1968 broke into and entered the Southside Lunch at the corner of Front and Castle Streets in Wilmington, North Carolina. The evidence is fully set out in State v. Allen (filed 28 May 1969).

Neither defendant took the stand or offered any evidence. The court allowed defendants’ motions for nonsuit as to the counts in the bills of indictment charging larceny and receiving, and submitted the case to the jury solely on the count of felonious breaking and entering. The jury returned verdicts of guilty as charged of felonious breaking and entering. From judgment sentencing each to prison for a term of ten years, both defendants appealed.

Robert Morgan, Attorney General, by Ralph Moody, Deputy Attorney General, and Carlos W. Murray, Jr., Staff Attorney, for the State.

Yow •& Yow, by Lionel L. Yoio for defendant appellant.

MallaRD, C.J.

In spite of the fact this case and the case of State v. Robie C. Allen were tried together and treated as one case in the trial court, two separate records were filed in this Court and each case was docketed as a separate appeal. Where two or more cases are consolidated and tried together as one case and there are two or more appeals arising from the action, ordinarily only one copy of the record and the proceedings of the trial in the trial tribunal should be filed in this Court. Rule 19(b), Rules of Practice in the Court of Appeals of North Carolina; see State v. Hamilton, 1 N.C. App. 99, 160 S.E. 2d 79; Hoke v. Greyhound Corp., 227 N.C. 412, 42 S.E. 2d 593.

-We deem it expedient to point out that we feel it was not necessary that counsel for defendant appellant docket a separate record on appeal for each defendant. Each defendant makes the same assignment of error, and each defendant is represented in this Court by the same attorney. For the reasons stated in State v. Allen, supra, opinion by Parker, J., filed this date, we hold that the judgment appealed from was supported by the verdict, and, in the entire trial we find no prejudicial error.

Affirmed.

Campbell and MoeRis, JJ., concur.