#### STATE OF NORTH CAROLINA v. HOWARD RAY GUFFEY

No. 7229SC128

(Filed 26 April 1972)

Criminal Law §§ 155.5, 166— failure to docket record and file brief in apt time

Appeal is subject to dismissal where the record on appeal was not docketed within the time allowed by Court of Appeals Rule 5 and the appellant’s brief was not filed within the time allowed by Court of Appeals Rule 28. Court of Appeals Rule 48.

Appeal by defendant from Ervin, Judge, second week of the 9 August 1971 Session of Superior Court held in Rutherford County.

Defendant was charged in a bill of indictment, sufficient in form, with the felony of rape. The Solicitor elected to place defendant on trial for the lesser included offense of assault with intent to commit rape. Defendant pleaded not guilty and was tried by jury which found him guilty of assault with intent to commit rape.

Attorney General Morgan, by Assistant Attorney General Rosser, for the State.

James H. Burwell, Jr., for defendant.

BROCK, Judge.

This case was tried during the second week of the 9 August 1971 Session and the judgment was signed on 19 August 1971. However, the record on appeal was not docketed in this Court until 3 December 1971. There is no order in the record extending the time within which the record on appeal might be docketed in this Court. Therefore, in order to comply with Rule 5 the record on appeal should have been docketed on or before 17 November 1971. There seems to have been no difficulty in securing a transcript of the trial in ample time, because the record shows that the Solicitor accepted service of defendant’s case on appeal on 19 October 1971. This was almost a month before the record was due to be docketed in this Court.

Also, defendant’s brief was due in this Court on or before 7 March 1972. Rule 28. However, defendant’s brief was not filed until 27 March 1972, the day before oral arguments.

*282For failure to comply with the Rules, this appeal is subject to dismissal. Rule 48. We have reviewed the record on appeal and in our opinion defendant had a fair trial, free from prejudicial error.

Appeal dismissed.

Judges Hedrick and Vaughn concur.