#### STATE OF NORTH CAROLINA v. RUSSELL WENDELL MELSON

No. 721SC501

(Filed 2 August 1972)

Criminal Law § 161— exception to the judgment

Defendant’s exception to the judgment in a common-law robbery prosecution must fail where the judgment is supported by plenary competent evidence, the sentence is within statutory limits, and no prejudicial error appears on the face of the record on appeal.

Appeal by defendant from Tillery, Judge, 14 February 1972 Session of Superior Court held in Pasquotank County.

*587The defendant was charged in a bill of indictment, proper in form, with the felony of common-law robbery from the person and possession of one Sam Lee Dance on 19 December 1971. The defendant entered a plea of “not guilty.” The evidence for the State tended to show that Dance had fallen asleep in his automobile in the parking lot of a drive-in restaurant and when he awoke, was being beaten by the defendant. The defendant, after he “snatched” Dance out of the car and kicked him while he was on the ground, removed the money from Dance’s pockets and pocketbook and the wristwatch from his arm. He then struck Dance several times more with his fist; Dance began to fight back, and the defendant fled.

Dance had ample opportunity to observe the defendant during this time, and testified at the trial he had known the defendant previously for a period of ten years. Dance also testified, “When I turned around the light was behind me and in his face and I saw his face and recognized him. I would know him anywhere I would see him. That is the same man who is here in the Courtroom .... ”

Defendant presented two witnesses in his defense, his mother and a personal acquaintance, who had seen the defendant on the night in question and had noticed nothing unusual about his manner or appearance.

From a jury verdict of guilty as charged and judgment that he be imprisoned for a term of not less than seven nor more than ten years, defendant appealed to the Court of Appeals.

Attorney General Morgan and Assistant Attorney General Magner for the State.

Twiford & Adams by Russell E. Twiford and Christopher L. Seawell for defendant appellant.

MALLARD, Chief Judge.

In his brief, defendant brings forward no assignments of error but urges this court to “examine the record for any error that may appear prejudicial to the appellant.” This *588constitutes an exception to the judgment and presents the face of the record on appeal for review. 3 Strong, N.C. Index 2d, Criminal Law, § 161, and cases cited therein.

The Attorney General states that he has carefully reviewed the organization of the court, the bill of indictment, the defendant’s plea, the verdict and the judgment in the case before us and has found no error.

The judgment in this case was supported by plenary competent evidence, the sentence is within statutory limits, and no prejudicial error appears on the face of the record on appeal. We find no error.

No error.

Judges Campbell and Britt concur.