{ "id": 8552248, "name": "STATE OF NORTH CAROLINA v. WALTER JAMES BROWN", "name_abbreviation": "State v. Brown", "decision_date": "1970-10-21", "docket_number": "No. 7016SC600", "first_page": "534", "last_page": "539", "citations": [ { "type": "official", "cite": "9 N.C. App. 534" } ], "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": "141 S.E. 2d 627", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "264 N.C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573521 ], "opinion_index": 0, "case_paths": [ "/nc/264/0393-01" ] }, { "cite": "95 S.E. 2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "245 N.C. 98", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8605021 ], "opinion_index": 0, "case_paths": [ "/nc/245/0098-01" ] }, { "cite": "119 S.E. 2d 634", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "636" } ], "opinion_index": 0 }, { "cite": "254 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627331 ], "pin_cites": [ { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0599-01" ] }, { "cite": "126 S.E. 2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "607" } ], "opinion_index": 0 }, { "cite": "257 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568884 ], "pin_cites": [ { "page": "499" } ], "opinion_index": 0, "case_paths": [ "/nc/257/0486-01" ] }, { "cite": "139 S.E. 2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "263 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571759 ], "opinion_index": 0, "case_paths": [ "/nc/263/0533-01" ] }, { "cite": "127 S.E. 2d 509", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "257 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570708 ], "opinion_index": 0, "case_paths": [ "/nc/257/0723-01" ] }, { "cite": "69 S.E. 626", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "153 N.C. 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273275 ], "opinion_index": 0, "case_paths": [ "/nc/153/0555-01" ] }, { "cite": "61 S.E. 286", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "147 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270047 ], "opinion_index": 0, "case_paths": [ "/nc/147/0412-01" ] }, { "cite": "171 S.E. 2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "276 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560350 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/276/0123-01" ] } ], "analysis": { "cardinality": 579, "char_count": 10318, "ocr_confidence": 0.507, "pagerank": { "raw": 9.994281953049938e-08, "percentile": 0.5385034030941572 }, "sha256": "ab214a2c7e5e504c6ad06e74d6e0826bbeaca865694c41c347e0b1c64bc1d8c4", "simhash": "1:16dcbc905f3c88ba", "word_count": 1851 }, "last_updated": "2023-07-14T14:50:15.842675+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Brock and Graham concur." ], "parties": [ "STATE OF NORTH CAROLINA v. WALTER JAMES BROWN" ], "opinions": [ { "text": "MORRIS, Judge.\nThe record on appeal filed by defendant was devoid of any order allowing certiorari, and the record as filed indicated the appeal was subject to dismissal. On oral argument, defendant moved to be allowed to file the order as an addendum to the record. This motion is allowed. Defendant\u2019s brief was not filed within the time allowed by the rules of this Court. However, in this case, in view of the fact that no objection has been interposed by the State, we are not disposed to dismiss defendant\u2019s appeal on that ground.\nThe exceptions taken by defendant have been assembled into five groups under the heading \u201cAssignments of Error.\u201d Group I is addressed to the court\u2019s overruling his motion for nonsuit at the close of the State\u2019s evidence and renewed at the close of all the evidence. This alleged error is not brought forward and argued in defendant\u2019s brief and is, therefore, deemed abandoned. Rule 28, Rules of Practice in the Court of Appeals of North Carolina. State v. Kirby, 276 N.C. 123, 171 S.E. 2d 416 (1969).\nDefendant includes 12 exceptions under Group II as follows :\n\u201cGROUP II\n\u201cExceptions Nos. 4(R p 29), 5, 6, 7, 8 (R p 30), 9, 10, 11, 12 (R p 31), 13 (R pp 31-32), 14 (R p 32) and 17 (R p 45).\nThe court below allowed prejudicial, irrelevant and immaterial evidence to be adduced in the presence of the jury.\u201d\nIn State v. Kirby, supra, defendant, who had been convicted of first-degree murder, was represented on appeal by the same counsel now appearing for defendant before us. In the opinion in that case, the Court quoted defendant\u2019s purported assignment of error as to rulings of the court on evidence. It was:\n\u201cGroup I \u2014 Exceptions Nos. 6 (R p 25), 7 (R pp 25-26), 8 (R p 29), 9 (R p 30), 10 (R pp 31-32), 11 (R p 39), 12, 13 (R p 40), 14 (R pp 40-41), 15 (R p 41), 16 (R p 45), 17 (R pp 45-46), 18 (R p 46), 19 (R pp 46-47), 20 (R p 47), 21, 22 (R p 48), 23 (R pp 50-51), 24 (R p 52), 25 (R p 53), 26 (R pp 55-56), 27 (R pp 56-57), 28 (R p 59), 29 (R pp 61-62), 30 (R p 62), 31 (R pp 64-65), 32 (R p 66), 33 (R p 67), 34 (R pp 68-69), 35, 36 (R p 71), 37, 38 and 39 (R p 72).\n\u2018The court below allowed prejudicial, irrelevant and immaterial evidence to be adduced in the presence of the jury to the prejudice of the defendant, and these for the Appellant are Exceptions Nos. 6, 7, 8, 9,10,11,12,13,14,15,16,17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, and 39.\u2019 \u201d\nWith respect to this purported assignment of error the Court said: \u201c \u2018The assignment must be so specific that the court is given some real aid and a voyage of discovery through an often voluminous record not rendered necessary.\u2019 Thompson v. R.R., 147 N.C. 412, 61 S.E. 286.\u201d, and\n\u201cAs aptly stated in McDowell v. Kent, 153 N.C. 555, 69 S.E. 626, \u2018[w]hat the Court desires, and indeed the least that any appellate court requires, is that the exceptions which are bona fide . . . shall be stated clearly and intelligibly by the assignment of errors and not by referring to the record, and therewith shall be set out so much of the evidence or of the charge or other matter or circumstance (as the case may be) as shall be necessary to present clearly the matter to be debated.\u2019 \u201d\nThe Court then noted that the Rules of the Supreme Court are mandatory and will be enforced, and said \u201cSince the Rules require that assignments of error specifically show within themselves the questions sought to be presented, it follows, therefore, that a mere reference in the assignment of error to the record page where the asserted error may be discovered \u2014 defendant\u2019s procedure here \u2014 fails completely to comply with Rules 19(3) and 21, Rules of Practice in the Supreme Court (citing cases).\u201d\nDefendant\u2019s procedure in this case, identical to his procedure in State v. Kirby, supra, is, of course, subject to the same treatment here. It fails completely to comply with Rules 19 (c) and 21, Rules of Practice in the Court of Appeals of North Carolina, which rules were promulgated by the Supreme Court of North Carolina.\nWe turn now to defendant\u2019s next purported assignments of error directed to alleged errors in the charge as follows:\n\u201cGROUP III\nExceptions Nos. 19 (R p 49), 20 (R p 52), 21 (R pp 52-53), 22 (R p 56), 23 (R pp 57-58), 24 (R pp 59-60) and 25 (R p 63).\nThe court erroneously charged the jury as to the facts, law and evidence produced in the case to the prejudice of the defendant.\u201d\nand\n\u201cGROUP Y\nException No. 24A (R p 61).\nThe court below neglected to properly charge the jury during its main charge to the prejudice of the defendant, thereby necessitating an additional charge which did not cure this prejudice.\u201d\nIn State v. Kirby, supra, defendant\u2019s alleged errors in the charge were presented under \u201cGroup V\u201d in the following language :\n\u201cGroup V \u2014 Exceptions Nos. 132 (R p 174), 135 (R pp 175-176), 136 (R p 176), 137 (R p 177), 138, 139 (R p 178), 140 (R p 179), 141 (R pp 179-180), 142, 143 (R p 180), 144 (R p 181), 144A, 144B (R p 182), 144C, 144D (R p 183), 144E (R pp 183-184), 144F (R p 184), 144G (R p 185), 144H (R pp 185-186), 1441 (R p 186), 144J (R p 187), and 144K (R p 188).\n\u2018The court erroneously charged the jury as to the facts, law and evidence produced in the ease to the prejudice of the defendant, and this for the-appellant is Exceptions Nos. 132, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 144A, 144B, 144C, 144D, 144E, 144F, 144G, 144H, 1441, 144J, and 144K.\u2019 \u201d\nWith respect to this assignment, the Supreme Court said:\n\u201cThis assignment \u2014 like a hoopskirt \u2014 covers everything and touches nothing. It is based on numerous exceptions and attempts to present several separate questions of law \u2014 none of which are set out in the assignment itself \u2014 thus leaving it broadside and ineffective. \u2018An assignment which attempts to raise several different questions is broadside.\u2019 Hines v. Frink and Frink v. Hines, 257 N.C. 723, 127 S.E. 2d 509.\nAssignments of error to the charge should quote the portion of the charge to which appellant objects, and assignments based on failure to charge should set out appellant\u2019s contention as to what the court should have charged. State v. Wilson, 263 N.C. 533, 139 S.E. 2d 736. \u2018When an exception relates to the charge, that portion to which the exception is taken must be set out in the particular assignment of error. A mere reference to the exception number and the page number of the record where the exception appears . . . will not present the alleged error for review. Pratt v. Bishop, 257 N.C. 486, 499, 126 S.E. 2d 597, 607; Darden v. Bone, 254 N.C. 599, 601, 119 S.E. 2d 634, 636; Lowie & Co. v. Atkins, 245 N.C. 98, 95 S.E. 2d 271.\u2019 Samuel v. Evans and Cooper v. Evans, 264 N.C. 393, 141 S.E. 2d 627.\u201d\nWe cannot perceive that the Court could have more clearly pointed out defendant\u2019s complete failure to comply with the rules nor more clearly set out the proper procedure to be followed.\nObviously, the assignments of error attempted to be presented here are identical in form to those attempted to be presented in Kirby. They fail for the same reasons.\nFinally, defendant moved to set the verdicts aside, for judgment notwithstanding the verdicts, and for a new trial. He cites no authority in his brief in support of any of these motions, all of which are argued under \u201cGroup IV.\u201d Clearly the motion for judgment notwithstanding the verdicts is not a proper procedure in a criminal action. He argues that he is entitled to a new trial because the court improperly permitted prejudicial evidence to be adduced in the presence of the jury and permitted the State persistently to ask improper questions in the presence of the jury. Our voyage of discovery through the record discloses that to questions propounded to defendant\u2019s character witness by the solicitor, defendant aptly objected, his objections were sustained by the court, and, as defendant states in his brief, the court instructed the jury that questions asked by the solicitor were not to be considered by them as evidence. Defendant did not request the court to limit the cross-examination, did not request instructions to the jury, nor did he ask for a mistrial\u2014 any one of which he could have done and should have done had he felt at trial, as he contends now, that his right to a fair trial was not being properly protected.\nAs was said in Kirby, supra:\n\u201cDefendant\u2019s failure to perfect his appeal in conformity with the rules has necessitated a judicial Easter egg hunt. No error of law appears on the face of the record proper, and our reluctant voyage through the remainder of the record has uncovered no error which would require a new trial.\u201d\nNo error.\nJudges Brock and Graham concur.", "type": "majority", "author": "MORRIS, Judge." } ], "attorneys": [ "Attorney General Morgan by Staff Attorney Sauls for the State.", "Arthur L. Lane for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WALTER JAMES BROWN\nNo. 7016SC600\n(Filed 21 October 1970)\n1. Criminal Law \u00a7 166\u2014 the brief \u2014 abandonment of assignment of error\nAssignment of error not brought forward and argued in the brief is deemed abandoned. Court of Appeals Rule No. 28.\n2. Criminal Law \u00a7 161\u2014 assignment of error \u2014 form and sufficiency\nA mere reference in the assignment of error to the record page where the asserted error may be discovered fails completely to comply with Rules 19(c) and 21, Rules of Practice in the Court of Appeals.\n3. Criminal Law \u00a7 163\u2014 assignment of error to the charge\nDefendant\u2019s assignments of error to the charge in this criminal case fails to comply with the Rules of the Court of Appeals.\n4. Rules of Civil Procedure \u00a7 50\u2014 motion for judgment n.o.v.\nThe motion for judgment notwithstanding the verdict is not a proper procedure in a criminal action.\nAppeal by defendant from Clark, J., 20 October 1969 Session of Superior Court of Robeson County.\nDefendant was charged with public drunkenness, carrying a concealed weapon, resisting arrest and malicious damage to personal property. He was convicted on each charge in District Court and appealed to Superior Court. He was, by the jury, found guilty of each charge. From the judgments entered on the verdicts and the imposition of sentences, defendant appealed. He was represented by privately retained counsel. Record on appeal was not docketed within the time allowed by our rules and defendant petitioned this Court for writ of certiorari which was allowed.\nAttorney General Morgan by Staff Attorney Sauls for the State.\nArthur L. Lane for defendant appellant." }, "file_name": "0534-01", "first_page_order": 558, "last_page_order": 563 }