#### STATE OF NORTH CAROLINA v. JAMES MARION STOVALL

No. 6930SC494

(Filed 17 December 1969)

Criminal Law § 155.5— failure to docket record on appeal in apt time

Appeal is dismissed by tbe Court of Appeals ex mero motu for failure to docket tbe record on appeal until two months beyond the time allowed by Court of Appeals Rule 5.

Appeal by defendant from Martin, J., 31 March 1969 Session, CheroKEE Superior Court.

Defendant was tried and convicted in District Court, and upon his appeal and trial de novo in the Superior Court was again convicted by a jury, upon a warrant charging his willful neglect and refusal to provide adequate support for his wife and children, while living with his said wife.

From the verdict and active sentence imposed, defendant gave notice of appeal.

Robert Morgan, Attorney General, by R. S. Weathers, Staff Attorney, for the State.

C. E. Hyde for the defendant.

Brocic, J.

The judgment appealed from was entered 31 March 1969. The record does not contain an order of the trial tribunal extending time for docketing the record on appeal in this Court. Therefore, in accordance with the rules of practice, the record on appeal should *74have been docketed in this Court no later than 29 June 1969. Rule 5, Rules of Practice in the Court of Appeals of North Carolina. The' record on appeal in this case was docketed in this Court on 27: August 1969, almost two months beyond the time allowed by Rule 5. For failure of defendant to comply with the rules, the appeal is subject to dismissal by this Court ex mero motu. State v. Wilson, 3 N.C. App. 225, 164 S.E. 2d 546.

Nevertheless we have reviewed the record on appeal with particular reference to defendant’s assignments of error. In our opinion, defendant was given a fair trial, free from prejudicial error.

Appeal dismissed.

BRItt and Vaughn, JJ., concur.