State v. Green , 280 N.C. 431 ( 1972 )

Per Curiam.

Under the heading “Grouping of Exceptions and Assignments of Error,” defendant lists five assignments of error. There are no exceptions in the record and none of the five assignments are based upon exceptions.

An assignment of error is ineffectual unless based on an exception duly noted in apt time. State v. Greene, 278 N.C. 649, 180 S.E. 2d 789 (1971); State v. Rogers, 275 N.C. 411, 168 S.E. 2d 345 (1969); Vance v. Hampton, 256 N.C. 557, 124 S.E. 2d 527 (1962); 1 Strong, N. C. Index 2d, Appeal and Error § 24. Questions not embraced in an exception duly taken at the trial may not be presented on appeal. Nevertheless, the appeal itself is an exception to the judgment and presents the case for review only for errors appearing on the face of the record. State v. Jackson, 279 N.C. 503, 183 S.E. 2d 550 (1971); 3 Strong, N. C. Index 2d, Criminal Law § 161.

The indictment in this case, proper in form, charged defendant with burglary in the first degree. When the matter came on for trial, prior to the taking of any testimony, the solicitor announced that he would not try defendant for first degree burglary but for second degree burglary. Defendant did not object and took no exception. Defendant entered a plea of not guilty, and the trial proceeded upon the charge of burglary in the second degree. State v. Allen, 279 N.C. 115, 181 S.E. 2d 453 (1971). The jury found defendant guilty of second degree burglary, and the court imposed sentence of not less than 30 nor more than 40 years in the State’s prison. This sentence is within the limits prescribed by G.S. 14-52 for burglary in the second degree.

The indictment sufficiently charged the crime for which defendant was tried in a properly organized court, and the sentence was within statutory limits. We have carefully examined this record and find no error.

No error.