#### STATE OF NORTH CAROLINA v. JUDY ANN McDANIEL

No. 7112SC120

(Filed 31 March 1971)

Criminal Law § 155.5— docketing of appeal

Criminal appeal is subject to dismissal for failure of defendant to docket the case on appeal within ninety days. Court of Appeals Rule No. 5.

Appeal by defendant from Cooper, Superior Court Judge, 6 August 1970 Term, Cumberland County Superior Court.

Defendant was charged in a valid bill of indictment with possession of the narcotic drug heroin. Defendant, an indigent, was represented by court-appointed counsel and entered a plea of not guilty.

*744Evidence for the State tended to show that Officer White of the Fayetteville Police Department observed the defendant sniffing something from a piece of paper. He approached the defendant and asked to see what she had in her hand. She refused and Officer White placed her under arrest. A few minutes later, she voluntarily opened her hand revealing something like waxed paper with a white substance contained therein. The substance was subsequently examined by the S.B.I. and determined to be heroin.

The jury returned a verdict of guilty as charged. From a sentence of 2 to 3 years, the defendant appeals to this Court.

Attorney General Robert Morgan by Staff Attorney Howard P. Satisky for the State.

Mitchel E. Gadsden for defendant appellant.

CAMPBELL, Judge.

The judgment in this case was entered on 6 August 1970. The case on appeal was not docketed in this Court until 16 December 1970 and no order extending the time for docketing appears in the record. Rule 5 of the Rules of Practice in the Court of Appeals allows ninety days to docket the case on appeal. As this case was not docketed within the prescribed period of time, the appeal is subject to dismissal for failure to comply with the Rules.

We have, nevertheless, examined each of defendant’s assignments of error and find no prejudicial error. State v. Roberts, 276 N.C. 98, 171 S.E. 2d 440 (1970) covers all points raised by the defendant. Defendant has had a fair trial in all respects.

Appeal dismissed.

Judges Britt and Hedrick concur.