{ "id": 8550163, "name": "STATE OF NORTH CAROLINA v. ALBERT JOHNSON LEWIS", "name_abbreviation": "State v. Lewis", "decision_date": "1970-08-26", "docket_number": "No. 7021SC507", "first_page": "323", "last_page": "326", "citations": [ { "type": "official", "cite": "9 N.C. App. 323" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "275 N.C. 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557965, 8557935, 8558001, 8557916, 8557950, 8557983 ], "opinion_index": 0, "case_paths": [ "/nc/275/0137-04", "/nc/275/0137-02", "/nc/275/0137-06", "/nc/275/0137-01", "/nc/275/0137-03", "/nc/275/0137-05" ] }, { "cite": "164 S.E. 2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "3 N.C. App. 120", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553433 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc-app/3/0120-01" ] }, { "cite": "167 S.E. 2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558608 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0288-01" ] }, { "cite": "171 S.E. 2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560350 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0123-01" ] } ], "analysis": { "cardinality": 389, "char_count": 6283, "ocr_confidence": 0.513, "pagerank": { "raw": 1.889292081283711e-07, "percentile": 0.7287870837257308 }, "sha256": "fb8bcd38fb75fe42cf6f73a5dfdda1640ffc456e89b28a5b4642a13af1ed3b57", "simhash": "1:f735cded4f6ded59", "word_count": 1108 }, "last_updated": "2023-07-14T14:50:15.842675+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Parker and Hedrick, JJ., concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ALBERT JOHNSON LEWIS" ], "opinions": [ { "text": "Mallard, C.J.\nThe case is not properly before us. Therefore, the questions set forth in the assignments of error are not properly presented. It is established law in North Carolina that the rules governing appeals are mandatory, not directory. State v. Kirby, 276 N.C. 123, 171 S.E. 2d 416 (1970).\nJudge Johnston, the trial judge, on the date of the judgment, 12 March 1970, gave the defendant thirty days to prepare and serve his statement of case on appeal and allowed the State thirty days thereafter to serve countercase. On 10 April 1970 Judge Crissman entered an order, upon defendant\u2019s motion, allowing the defendant an additional thirty days in which to serve his statement of case on appeal. Thereafter, on 12 May 1970, upon defendant\u2019s motion, Judge Crissman entered another order allowing the defendant an additional thirty days in which to serve his statement of case on appeal. Defendant did not serve his statement of case on appeal but tendered it, and service thereof was accepted by the district solicitor on 9 June 1970. This was not within the time allowed by the order of Judge Johnston. Judge Crissman, who was not the trial judge, did not have authority to enter either of these orders allowing the defendant additional time in which to serve the statement of his case on appeal. Under the applicable statutes, G.S. 15-180 and G.S. 1-282, only the judge who tried the case can extend the time for serving the statement of the case on appeal. State v. Atkinson, 275 N.C. 288, 167 S.E. 2d 241 (1969). The statutes do not authorize the trial judge to grant appellant another extension of time to serve statement of case on appeal after the expiration of the session at which the judgment was entered. State v. Atkinson, supra. However, the trial judge is given authority to do this under Rule 50 of the Rules of Practice in the Court of Appeals which reads as follows:\n\u201cIf it appears that the case on appeal cannot be served within the time provided by statute, rule, or order, the trial judge (or the Chairman of the Industrial Commission or the Chairman of the Utilities Commission as the case may be) may, for good cause and after reasonable notice to the opposing party or counsel, enter an order or successive orders extending the time for service of the case on appeal and counter-case or exceptions to the case on appeal, provided this does not alter the provisions of Rule 5 relating to the docketing of the record on appeal.\u201d\nIn the case of Roberts v. Stewart and Newton v. Stewart, 3 N.C. App. 120, 164 S.E. 2d 58 (1968), cert. denied, 275 N.C. 137, this court said:\n\u201cIn the absence of a case on appeal served within the time fixed by the statute, or by valid enlargement, the appellate court will review only the record proper and determine whether errors of law are disclosed on the face there-Q-f ??\nWe have reviewed the record proper, and no prejudicial error is disclosed on the face thereof.\nNo Error.\nParker and Hedrick, JJ., concur.", "type": "majority", "author": "Mallard, C.J." } ], "attorneys": [ "Attorney General Morgan and Assistant Attorney General Rich for the State.", "Wilson, Morrow & Boyles by John F. Morrow for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ALBERT JOHNSON LEWIS\nNo. 7021SC507\n(Filed 26 August 1970)\n1. Criminal Law \u00a7 146; Appeal and Error \u00a7 24 \u2014 mandatory appellate rules\nThe rules governing appeals are mandatory, not directory.\n2. Criminal Law \u00a7 154\u2014 improper service of case on appeal \u2014 extension of time \u2014 trial judge\nCriminal appeal was improperly before the Court of Appeals where the service of case on appeal was not made within the 30 days allowed by the trial judge; purported extension of time by a judge other than the trial judge was ineffectual to comply with the statutes and the Rules of the Court of Appeals. G.S. 1-282, G.S. 15-180, Rule of Practice No. 50.\n3. Criminal Law \u00a7 154\u2014 case on appeal \u2014 extension of time \u2014 trial judge\nOnly the judge who tried the case can extend the time for serving the statement of the case on appeal. G.S. 1-282, G.S. 15-180.\nAppeal by defendant from Johnston, J., 2 March 1970 Two-Week Session of Superior Court held in Forsyth County.\nDefendant was tried upon a bill of indictment, proper in form, charging him with committing, on 25 October 1969, the felony of assault upon Ronald T. McHam with a deadly weapon, with intent to kill, inflicting serious bodily injuries.\nThe evidence for the State tended to show that on 25 October 1969 McHam was standing on a street in Winston-Salem talking to and holding hands with Margie Rice (Margie), who was a friend of both defendant and McHam. The defendant came down the street in his car, stopped, and said to McHam, \u201cGo ahead Mack.\u201d A few words were exchanged between defendant and McHam; whereupon, defendant shot McHam four times with what McHam thought was a .22 calibre pistol. The first shot struck him in the stomach above his navel. McHam testified, \u201cThe next shot was to the right side on the front. I was also shot in the back and under my shoulder blades in the middle of my back, and through the left arm.\u201d Defendant told Margie to get in his car, which she did. After defendant shot him, McHam, who had a .22 calibre pistol with him, shot at the defendant as he drove off. McHam was taken to the hospital where he remained over a month recovering from the wounds inflicted on him by defendant.\nDefendant did not testify but offered Margie as a witness. She testified that in her opinion McHam was drunk. She and McHam were standing on the sidewalk when defendant drove up and told her to come get in his car. As she started to get in, McHam started walking towards the car when defendant said, \u201cYou\u2019d better go on.\u201d McHam came up to the car and leaned on the door on the driver\u2019s side. After defendant and McHam talked to each other, McHam pulled a gun out, defendant hit McHam\u2019s hand, and then the shooting started. She got in the back seat of the car on the floorboard. She heard eight or nine shots. The car rolled down the street while shots were still being fired. Neither Margie nor the defendant were hit by any of the shots.\nThe jury found the defendant guilty of an assault with a firearm inflicting serious injury which is a felony. From judgment of imprisonment of not less than three years nor more than five years, the defendant appealed to the Court of Appeals.\nAttorney General Morgan and Assistant Attorney General Rich for the State.\nWilson, Morrow & Boyles by John F. Morrow for defendant appellant." }, "file_name": "0323-01", "first_page_order": 347, "last_page_order": 350 }