State v. Evans , 8 N.C. App. 469 ( 1970 )

Mallaed, C.J.

The record on appeal shows that the cases against these two defendants were consolidated with another case against a defendant named Vincent McCullough. The record on appeal does not disclose what happened to the case against the defendant McCullough. However, it is noted in the charge that the court did not instruct the jury with respect to the charge against the defendant McCullough. It is assumed, therefore, that the court dismissed the case against McCullough prior to submitting the case to the jury.

The record on appeal does not reveal how the cases got into the superior court. The record on appeal shows that the defendants were tried on warrants in the superior court but does not show how the superior court obtained jurisdiction. However, in a newspaper article inserted in the record by the defendants in support of the motion of the defendants for a mistrial, the following appears: “All three were convicted on the charges in the District Court, and appealed to Superior Court for jury trials.”

It is the appellant’s duty to see that the record on appeal is properly made up and transmitted to the Court of Appeals. State v. Stubbs, 265 N.C. 420, 144 S.E. 2d 262 (1965).

The record does not reveal that these are indigent defendants.

The State on 7 May 1970 filed a motion in this cause to dismiss this appeal. The State alleged that the defendants had failed to comply with Rule 5 of this Court in that the record on appeal was not docketed within ninety days and no order was entered in the superior court within ninety days of the entry of the judgment extending the time for docketing the record on appeal. The record on appeal was docketed in this Court on 29 March 1970. In December 1969 Judge Collier signed an order extending the time in which Evans could serve his statement of case on appeal to and including the 15th day of February 1970. On 17 December 1969 Judge Collier extended the time for the defendant Johnson to serve his statement of case on appeal to and including the 15th day of February 1970. It is observed that in neither of these orders was there any order made with respect to extending the time for docketing the record on appeal. The ninety days allowed for docketing the record on appeal expired on 29 January 1970, and at that time no order had been entered extending the time to docket the record on appeal. In the case of Roberts v. Stewart and Newton v. Stewart, 3 N.C. App. 120, 164 S.E. 2d 58 (1968), cert. den. 21 January 1969, 275 N.C. 137, it is said: “Within this period of ninety days, but not after the expiration thereof, the trial tribunal may for good cause extend the time not exceeding sixty days for docketing the record on appeal.” Since this record on appeal was not docketed within ninety days as required by Rule 5 of the Rules of Practice in the Court of Appeals and since no order was obtained within the ninety days from the trial tribunal extending the time for docketing the record on appeal, the case is subject to be dismissed under Rule 17 and Rule 48 of the Rules of Practice in the Court of Appeals.

On 13 February 1970 Judge Kivett, without a finding that good cause existed for the extension of time to docket a case on appeal, attempted to extend the time of the defendants for docketing the case on appeal until 30 March 1970. This also was a violation of Rule 5 of the Rules of Practice in that Rule 5 requires that “the trial tribunal may, for good cause, extend the time not exceeding sixty days, for docketing the record on appeal.” (Emphasis Added.) Moreover, in this same order Judge Kivett attempted to extend the time in which the defendants could serve statement of case on appeal to and including the 25th day of February 1970. In this order of Judge Kivett extending the time to serve case on appeal it was stated that it was “for good cause shown.” However, Rule 50 of the Rules of Practice in the Court of Appeals, adopted by the Supreme Court of North Carolina on 18 February 1969, provides that only the trial judge may extend, for good cause and after reasonable notice to the opposing party or counsel, the time for service of the case on appeal and countercase or exceptions. Judge Kivett was not the trial judge and, therefore, was without authority to extend the time to serve the statement of case on appeal. The record reveals that the statement of the case on appeal was served on the solicitor on 24 February 1970, which was after the time granted by Judge Collier, the trial judge, for the extension of the time to serve the case on appeal. Therefore, the case on appeal was not served within the time as permitted under the Rules of Practice in the Court of Appeals.

After this case was argued, the defendants filed what they called a “supplementary brief” without leave of the court to do so. This is in violation of Rule 11 of the Rules of Practice in the Court of Appeals which, among other things, provides that “no brief or written argument will be received after a case has been argued or submitted, except upon leave granted in open court, after notice to opposing counsel.”

On 9 May 1969, the date the defendants were charged with this offense, punishment was by fine or imprisonment, or both, in the discretion of the court. Thereafter, on 1 July 1969, the General Assembly of North Carolina, by Chapter 1224 of the Session Laws of 1969, changed the punishment for the offense with which the defendants are charged by making it “punishable by a fine not to exceed five hundred dollars ($500.00), imprisonment for not more than six months, or both.” This act became effective on 1 October 1969 and was in effect on the day that the judge imposed the sentence on these defendants. In State v. Spencer, et al, 276 N.C. 535, 173 S.E. 2d 765 (filed 13 May 1970), the Supreme Court said:

“We note, however, that while this appeal was pending the Legislature amended G.S. 20-174.1 (b) to read as follows: ‘Any person convicted of violating this section shall be punished by a fine not exceeding five hundred dollars ($500.00) or by imprisonment not exceeding six months, or both, in the discretion of the court.’ (S.L. 1969, c. 1012) Since this amendment reduced the maximum punishment for violation of G.S. 20-174.1 (a) while this appeal was pending, the change inures to the benefit of defendant Henry Johnson, Jr., who was given an active sentence of nine months by the trial judge. ‘A judgment is not final as long as the case is pending on appeal.’ State v. Pardon, 272 N.C. 72, 75, 157 S.E. 2d 698, 701, and authorities there cited. The judgment as to defendant Henry Johnson, Jr., is therefore modified so as to reduce his sentence from nine months to six months in the common jail of Hyde County.”

The case should be dismissed for failure to comply with the Rules of this Court. However, acting under the supervisory powers of this Court and applying the above principles of law to the facts in this case, the judgment as to the defendant Evans should be and is modified so as to reduce his sentence from twelve months to six months in the common jail of Guilford County, and the judgment as to defendant Johnson is also modified so as to reduce his sentence from twelve months to six months in the common jail of Guil-ford County.

As modified, the judgment of the superior court is affirmed.

Modified and affirmed.

MoRRis and Graham, JJ., concur.