State v. Simpson

188 S.E.2d 535 (1972)

14 N.C. App. 456

STATE of North Carolina v. Willie Bee SIMPSON.

No. 7226SC329.

Court of Appeals of North Carolina.

May 24, 1972.

*536 Atty. Gen. Robert Morgan by Asst. Atty. Gen. William F. Briley for the State.

W. B. Nivens, Charlotte, for defendant appellant.

PARKER, Judge.

The judgment appealed from is dated 23 November 1971. The record on appeal was docketed in this Court on 29 February 1972, which was more than ninety days after the date of the judgment. No order extending the time for docketing the record on appeal appears in the record. For failure of appellant to docket the record on appeal within the time allowed by the rules of this Court, this appeal is subject to dismissal. Rule 5, Rules of Practice in the Court of Appeals. State v. Bennett, 13 N.C.App. 251, 185 S.E.2d 7; State v. Squires, 1 N.C.App. 199, 160 S.E.2d 550.

Nevertheless, we have carefully examined the record, particularly with reference to the questions raised in appellant's brief, and find no prejudicial error. "It is not required that the verdict be consistent; therefore, a verdict of guilty of a lesser degree of the crime when all the evidence points to the graver crime, although illogical and incongruous, or a verdict of guilty on one count and not guilty on the other, when the same act results in both offenses, will not be disturbed." 3 Strong, N.C.Index 2d, Criminal Law, § 124, p. 39. Appellant, nevertheless, strongly contends that the trial court committed prejudicial error in this case when it submitted the issue of misdemeanor larceny to the jury, since the only evidence presented as to the value of the property stolen was the opinion of its owner that it had a fair market value of "about $325.00." However, the jury was required to make its own determination as to whether the stolen property had a value of more than $200.00. State v. Cooper, 256 N.C. 372, 124 S.E.2d 91, and in making that determination the jury could properly weigh and consider all of the evidence, including the evidence as to the nature of the property stolen. In this case the property involved consisted of ordinary household goods and appliances, and as to such property a jury might properly make a determination of value contrary to the uncontradicted testimony of the State's witness as to her opinion of its value. On the evidence presented in this case, we do not think it was error for the trial court to submit an issue as to misdemeanor larceny. Even if it be considered that the trial court erred in submitting such an issue, the error was prejudicial to the State and not to the defendant. State v. Rogers, 273 N.C. 208, 159 S.E.2d 525; State v. Chase, 231 N.C. 589, 58 S.E.2d 364.

Appeal dismissed.

MALLARD, C. J., and MORRIS, J., concur.