State v. Pulley

Annotate this Case

168 S.E.2d 62 (1969)

5 N.C. App. 285

STATE of North Carolina v. Elvis PULLEY.

No. 6910SC351.

Court of Appeals of North Carolina.

July 2, 1969.

*63 Atty. Gen. Robert Morgan and Asst. Atty. Gen. Millard R. Rich, Jr., for the State.

Malcolm B Grandy, Raleigh, for defendant appellant.

PARKER, Judge.

Defendant's first assignment of error is that his constitutional rights were violated in that counsel was not appointed to represent him until after the preliminary hearing at which he was bound over to the superior court. This assignment of error is overruled. Counsel was appointed to represent defendant, an indigent, within eight days after his arrest and more than five months prior to his trial in superior court. Nothing in the record indicates that any right of the defendant was in the slightest degree prejudiced by the fact that he did not have counsel during the first eight days following his arrest. Here, as in Gasque v. State, 271 N.C. 323, 156 S.E.2d 740, "(t)here is nothing in the record before us to indicate that appellant was asked any question by the committing inferior judge or that he made any statement of any kind whatsoever before the committing inferior judge. No evidence of the preliminary hearing was introduced at the trial in the Superior Court. No evidence of an admission or confession by the appellant was admitted at the trial in the Superior Court."

Appellant also assigns as error the overruling of his motion for nonsuit. In this case, the State relied upon circumstantial evidence. "An appeal from the refusal of defendant's motion to nonsuit in a case in which the state relies upon circumstantial evidence presents the question whether the record, considered in the light most favorable to the state, discloses substantial evidence of all material elements constituting the offense for which the accused was tried." 3 Strong, N.C. Index 2d, Criminal Law, ยง 176, p. 151. In the present case, considering the evidence in the light most favorable to the State, the record discloses substantial evidence of all material elements constituting the offense for which appellant was tried. It was for the jury, and not for the court, to determine whether the evidence was such as to exclude every reasonable hypotheses except that of guilt. State v. Stephens, 244 N.C. 380, 93 S.E.2d 431. There was no error in overruling appellant's motion for nonsuit.

Appellant's final assignment of error, addressed to the charge of the court to the jury, has been abandoned since no reason or argument is stated or authority cited in support thereof in appellant's brief. Rule 28, Rules of Practice in the Court of Appeals. In any event, the exception upon which this assignment of error purports to be based refers only to those pages in the record where the court's charge in its entirety appears. An assignment of error must be based on an appropriate exception and should show specifically what question is intended to be presented for consideration without the necessity of going beyond the assignment of error itself. "A mere reference in the assignment of error to the record page where the asserted error may be discovered is not sufficient." Lewis v. Parker, 268 N.C. 436, 150 S.E.2d 729.

In the entire trial, we find

No error.

MALLARD, C. J., and BRITT, J., concur.