#### STATE OF NORTH CAROLINA v. JAMES EDWARD McRAE

No. 7321SC575

(Filed 10 October 1973)

Criminal Law § 158 — matter omitted from record on appeal — question not considered on appeal

The Court of Appeals does not reach the question of denial of defendant’s right to counsel in District Court where the record on appeal does not disclose anything about the trial in District Court except the warrant, judgment, and notice of appeal.

Appeal by defendant from Collier, Judge, 16 April 1973 Session of Superior Court held in Forsyth County.

Defendant was charged with an assault upon Mae Frances McRae with a deadly weapon. He was tried in the District Court and found guilty. Upon his appeal he was tried de novo in the Superior Court and found guilty.

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

Jenkins, Lucas and Babb, by Judson D. DeRamus, Jr., for the defendant.

BROCK, Chief Judge.

At defendant’s insistence counsel has presented defendant’s contention that each of the following constitutes an error which entitles him to relief: (1) the fact that he is not guilty; (2) *580there was no corroboration of the State’s only witness; (3) jurors summoned to serve in civil cases were sworn and empaneled to sit in his criminal ease; (4) one juror works at Western Electric, where the State’s only witness works for the food service; (5) defendant was placed in double jeopardy because the solicitor brought up his past record on cross-examination of defendant; and (6) the sentence imposed after conviction in Superior Court was greater than that imposed in District Court. We have considered each of these contentions and find them to be without merit.

Defendant further seeks to argue that he was denied his right to counsel during the trial in District Court. We do not reach this question. The record on appeal does not disclose anything about the trial in District Court except the warrant, judgment, and notice of appeal. We decline to decide an issue submitted upon a theoretical or assumed set of facts. Counsel has been diligent in his efforts, but the record before us does not present the question he seeks to argue.

No error.

Judges Moréis and Parker concur.