State v. Bryson

226 S.E.2d 392 (1976)

30 N.C. App. 71

STATE of North Carolina v. Robert Pearl BRYSON.

No. 7630SC192.

Court of Appeals of North Carolina.

July 7, 1976.

Certiorari Denied September 1, 1976.

*393 Atty. Gen. Rufus L. Edmisten by Associate Atty. William H. Guy, Raleigh, for the State.

William A. Hoover, Jr., Murphy, for defendant-appellant.

Certiorari Denied by Supreme Court September 1, 1976.

PARKER, Judge.

Defendant Bryson was tried jointly with Lloyd Ashe and Hilliard Ashe. All three were found guilty and all appealed. Their court appointed attorneys caused two separate records on appeal to be filed in this Court. There should have been but one. Rule 11(d), North Carolina Rules of Appellate Procedure. In addition, the attorneys included in both of the records on appeal matter not necessary for an understanding of the errors assigned. For example, in the record filed by the attorney representing defendant Bryson there is included the entire *394 charge of the court to the jury although no assignment of error is made by any of the three appellants to any portion of the charge. In the record filed by the attorney representing defendants Ashe there is included copies of safekeeping orders and of orders authorizing the furnishing of transcripts at State expense, matters which have no bearing on the errors assigned. The filing of two records when there should have been but one and the inclusion in both records of matter which should not have been included has placed an unnecessary burden on this Court and has imposed upon the State an expense which was not necessary for the protection of defendants' rights to full appellate review. See opinion of Chief Judge Brock in State v. McKenzie, N.C.App., 226 S.E.2d 407, which is filed contemporaneously herewith.

Rule 9(b)(5) of the North Carolina Rules of Appellate Procedure is as follows:

"(5) Inclusion of Unnecessary Matter: Penalty. It shall be the duty of counsel for all parties to an appeal to avoid including in the record on appeal matter not necessary for an understanding of the errors assigned. The cost of including such matter may be charged as costs to the party or counsel who caused or permitted its inclusion."

Because counsel representing defendant Bryson and counsel representing defendants Ashe filed two records instead of one and because they included unnecessary material in each of the records filed, each counsel will be personally taxed with a portion of the costs.

Since each of the three defendants was charged with the same offenses, the cases were properly joined for trial, G.S. 15A-926(b)(2). Appellants have failed to show any way in which any of them was prejudiced because the solicitor's motion for joinder was not in writing. Accordingly, appellants' assignments of error directed to the court's action in consolidating the cases for trial are overruled. See: State v. Cottingham, N.C.App., 226 S.E.2d 409 (opinion filed contemporaneously herewith.)

Appellants assign error to the denial of their motions for change of venue or in the alternative for a special venire to be drawn from another county. The motions were made on the ground that because of publicity and because of the large number of unsolved breakings and enterings which had been committed in Cherokee County during the period immediately preceding the arrest of the defendants, the defendants could not in this case receive a fair trial in Cherokee County. Such motions are addressed to the sound discretion of the trial judge, and his ruling thereon will not be reviewed on appeal absent a showing of abuse of discretion. State v. Mitchell, 283 N.C. 462, 196 S.E.2d 736 (1973). No abuse of discretion has been here shown.

We have carefully considered all of the remaining assignments of error, and we find no error. There was ample evidence to warrant submitting the cases to the jury, and defendants' motions for nonsuit were properly denied. In the trial and judgments appealed from we find

No error.

HEDRICK and ARNOLD, JJ., concur.