State v. Cornelius, 265 N.C. 452 (1965)

Oct. 13, 1965 · Supreme Court of North Carolina
265 N.C. 452


(Filed 13 October, 1965.)

Criminal Law § 107—

An inadvertence in stating the contentions of the parties or in recapitulating' the evidence must be called to the trial court’s attention in time for correction.

Appeal by defendant from Fountain, J., May Criminal Session 1964 OÍ MECKLENBURG.

The defendant was tried and convicted upon a bill of indictment charging that with intent to kill, the defendant did assault one Willie Roy McNeill with a deadly weapon, to wit, a shot gun, inflicting serious injuries not resulting in death.

The defendant entered a plea of not guilty. The jury returned a verdict of guilty of assault with a deadly weapon. The defendant was given a sentence of eighteen months in jail, to be assigned to work under the supervision of the State Prison Department.

Defendant, through his counsel, gave notice of appeal, but his counsel, through no fault of the defendant, failed to perfect the appeal. We allowed certiorari on 6 April 1965 and set the case in its regular order for the Fall Term 1965.

Attorney General Bruton, Deputy Attorney General Ralph Moody, Staff Attorney Andrew A. Vanore, Jr., for the State.

Charles V. Bell for defendant.

Per Curiam.

The appellant has only one assignment of error and it purports to be based on a portion of the charge to which no exception was taken as required by the Rules of this Court. Even so, the portion of the charge complained of is set out under the assignment of error and consists in its entirety of a contention of the State.

We have repeatedly held that an inadvertence in stating contentions or in recapitulating the evidence must be called to the attention of the court in time for correction. After verdict, the objection comes too late. S. v. Case, 253 N.C. 130, 116 S.E. 2d 429; S. v. Holder, 252 N.C. 121, 113 S.E. 2d 15; S. v. Adams, 245 N.C. 344, 95 S.E. 2d 902.

There is no contention that the State’s evidence was not sufficient to support the verdict.

In our opinion, the defendant has had a fair trial, free from any prejudicial error, and the verdict and judgment entered below will not be disturbed.

No error.