State v. Evans, 237 N.C. 761 (1953)

May 20, 1953 · Supreme Court of North Carolina

237 N.C. 761

STATE v. CLARENCE EVANS.

(Filed 20 May, 1953.)

Criminal Law §§ 79, 801)—

Failure to file brief within the time allowed works an abandonment of the assignments of error, limiting the review to errors appearing on the face of the record, and when no error appears on the face of the record, the appeal will be dismissed on motion of the Attorney-General. Rule of Practice in the Supreme Court No. 28.

Appeal by defendant from Phillips, J., and a jury, at Regular January Criminal Term, 1953. BuNCOMbe.

Criminal prosecution on an indictment containing three counts: First count charges a felonious breaking and entry into a storehouse, etc., with intent to steal; second count charges larceny of personal property of the value of $257.50; and third count charges receiving the said property knowing it to have been stolen. The jury returned a verdict of guilty on the first two counts in the indictment, and from judgment imposing sentences on both counts to run consecutively, the defendant appealed in forma, pauperis. The affidavit upon which the order for appeal in forma pauperis was based, and the order of the presiding judge permitting him to appeal in forma pauperis are in proper form, and made in apt time.

Tbe Regular January Criminal Term, 1953, of Buncombe Superior Court convened 19 January. On 20 January tbe defendant was tried, found guilty by tbe jury, and sentenced by tbe court. On 30 January, 1953, tbe defendant through bis counsel, Sanford W. Brown and William Y. Burrow, filed in tbis Court tbe record proper and a petition for a writ of certiorari in regular form stating tbat on 22 January, 1953, in open court be appealed to tbe Supreme Court and on said date was authorized by tbe presiding judge to appeal in forma pauperis; tbat tbe court allowed tbe defendant thirty days in which to serve tbe case on appeal and tbe State twenty days thereafter in which to serve countercase or exceptions; tbat by tbe Rules of tbe Supreme Court appeals from tbe 19th Judicial District to tbe Spring Term, 1953, of tbe Supreme Court must be docketed not later than 10 :00 a.m. 20 January, 1953, and tbat it is impossible for tbis defendant in tbe exercise of due diligence to docket bis appeal within said time, and tbat bis appeal shows a meritorious defense. Tbis Court allowed tbe petition for certiorari 10 February, 1953; tbe Clerk of tbe Supreme Court on 11 February, 1953, notified Sanford W. Brown, counsel for tbe defendant, tbat petition bad been allowed tbe day before; on 20 March, 1953, tbe said Clerk wrote Sanford W. Brown asking when be would send tbe case on appeal; on 1 April, 1953, tbe said Clerk notified Sanford W. Brown tbat tbe Court bad set tbis case for argument at tbe end of tbe call of cases from tbe 8th and 13th Districts, to wit, 28 April, 1953. Appeals to be beard tbat week bad to be docketed by 10 :00 a.m. 7 April, 1953, and tbe appellant’s brief bad to be filed by noon 14- April, 1953.

Tbe agreed case on appeal was filed in tbe office of tbe Clerk of tbe Superior Court of Buncombe County on 16 April, 1953; it does not show when it was agreed upon by tbe solicitor and counsel for tbe defendant. Tbe agreed case on appeal was docketed in tbis Court on 17 April, 1953, and appellant’s brief was filed in tbis Court on 20 April, 1953.

On 17 April, 1953, a few minutes after tbe agreed case on appeal was docketed, tbe Attorney-General made a motion tbat tbe defendant having failed to file tbe ease on appeal in tbis Court on time, and no error appearing on the face of tbe record, tbat tbe judgment of tbe trial court be affirmed.

On 28 April, 1953, tbe Attorney-General moved, pursuant to Rule 28 of Rules of Practice in tbe Supreme Court, tbat tbe appeal and case be dismissed, for tbe appellant’s brief was filed too late. Tbe Attorney-General has filed no brief.

Attorney-General McMullan, Assistant Attorney-General Moody, and Gerald F. White, Member of Staff, for the State.

Sanford W. Brown and William V. Burrow for defendant, appellant.

Parker, J.

This appeal should have been docketed in this Court on or before 10 :00 a.m. Tuesday, 7 April, 1953, and appellant’s brief filed by noon 14 April, 1953, according to the order allowing the petition for writ of certiorari. Rules 5 and 28 of the Rules of Practice in the Supreme Court, 233 N.C. 749 and 750, et seq. Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126; S. v. Harrell, 226 N.C. 743, 40 S.E. 2d 205.

“We have held in a number of cases that the Rules of this Court, governing appeals, are mandatory and not directory . . . The Court has not only found it necessary to adopt them, but equally necessary to enforce them and to enforce them uniformly.” (Citing authority.) S. v. Moore, 210 N.C. 459, 187 S.E. 586. It is said in S. v. Presnell, 226 N.C. 160, 36 S.E. 2d 927, these rules have been uniformly enforced since the decision in S. v. Farmer, 188 N.C. 243, 124 S.E. 562.

While the agreed statement of the case on appeal was filed in this Court too late, yet it was filed a few minutes before the Attorney-General moved to affirm the judgment of the lower court. However, the appellant’s brief, which should have been filed by noon 14 April, 1953, was filed in this Court on 20 April, 1953. The Attorney-General makes a motion to dismiss the appeal and to affirm the judgment below for failure of the defendant appellant to file his brief on time, pursuant to Rule 28 of the Rules of Practice in the Supreme Court. Conceding that the Attorney-General made his motion too late to affirm the court below for failure of the defendant appellant to file the agreed statement of the case on appeal in time, Mitchell v. Melton, 178 N.C. 87, 100 S.E. 124; McIntosh N. C. Prac. and Proc., Sec. 688, yet the filing by the defendant appellant of his brief too late works an abandonment of the assignments of errors, except those appearing on the face of the record, which are cognizable ex mero motu. S. v. Robinson, 214 N.C. 365, 199 S.E. 270.

“The defendants made a motion to dismiss plaintiffs’ appeal That under Rule 28 of Practice in the Supreme Court, plaintiff appellants were required to file their brief by noon 13 February, 1937, and they failed to do so until 19 February 1937.’ The plaintiffs’ appeal is dismissed under the rule.” Wolfe v. Galloway, 211 N.C. 361, at p. 365, 190 S.E. 213. See also In re Bailey, 180 N.C. 30, 103 S.E. 896; Phillips v. Junior Order, 175 N.C. 133, 95 S.E. 91.

No error appears on the face of the record, and the sentences passed against the defendant on each count were within the limits authorized by law. The judgments entered below are

Affirmed and appeal dismissed.