State v. Willis

167 S.E.2d 518 (1969)

4 N.C. App. 641

STATE of North Carolina v. Christopher Columbus WILLIS.

No. 692SC143.

Court of Appeals of North Carolina.

May 28, 1969.

Certiorari Denied July 10, 1969.

*519 Robert Morgan, Atty. Gen., by William W. Melvin, Asst. Atty. Gen., and T. Buie Costen, Staff Atty., Raleigh, for the State.

John A. Wilkinson, Washington, for defendant.

MALLARD, Chief Judge.

It appears from the record that the judgment appealed from was entered 10 October 1968; thus absent an order extending the time for docketing, the record on appeal should have been docketed in this Court on or before 8 January 1969. Rule 5, Rules of Practice in the Court of Appeals of North Carolina. Counsel for the defendant did not docket the record on appeal in this Court until 20 January 1969, and for failure to docket on time this appeal is subject to dismissal. Rule 48, Rules of Practice, supra.

In addition to failure to docket on time, counsel for defendant submitted the complete transcript of the evidence under Rule 19(d) (2), but contrary to the provisions of that rule, he did not attach an appendix to his brief setting forth in succinct language with respect to those witnesses whose testimony he deemed to be pertinent to the questions raised on appeal, what he says the testimony of such witness tends to establish. The appeal is thus further subject to dismissal. Rule 19(d) (2), Rules of Practice, supra; Rule 48, Rules of Practice, supra.

In addition to the foregoing counsel for the defendant, in the preparation of his brief did not comply with that portion of Rule 28 of the Rules of Practice in the Court of Appeals of North Carolina which requires "Such brief shall contain, properly numbered, the several grounds of exception and assignment of error with reference to the pages of the record * * *."

*520 Despite the failure of defendant through his counsel to comply with the rules of this Court, we have considered the record here as a petition for writ of certiorari, allowed it, and considered the case on its merits. We are of the opinion that the failure of the trial court to rule on defendant's motion to determine his mental competency to stand trial before requiring him to plead to the indictment places this case within the doctrine of State v. Propst, supra. We hold the court's failure to rule on the motion at that time to be prejudicial error requiring that the verdict and judgment be vacated and this cause remanded for further proceedings.

Defendant contends it was error to permit the State's witness Sheriff Cahoon to identify certain stains or discolorations as blood stains. We hold that it was not error to permit the witness Cahoon, the Sheriff of Hyde County, to identify certain stains or discolorations as blood stains. See 23 C.J.S. Criminal Law § 876(c), page 452. See also State v. Smith, 223 N.C. 457, 27 S.E.2d 114. In the case of People v. Preston, 341 Ill. 407, 173 N.E. 383, 77 A.L.R. 631, it is said:

"Witnesses who were at the scene of the crime the next morning testified to finding blood stains on the car and blood on the grass on the roadside near where the body was found. It is claimed that this evidence was incompetent as being the conclusions of nonexpert witnesses. The existence of blood in large quantities, where the stains are recent and marked, may be distinguished by most persons, and, while it is more difficult to discover the character of a few drops or a smaller quantity, it does not necessarily follow that nonexperts cannot testify to its reality as a matter of fact. Greenfield v. People, 85 N.Y. 75, 39 Am.Rep. 636. It was for the jury to determine the weight to be given to the testimony. People v. Korak, 303 Ill. 438, 135 N.E. 764."

Defendant's exceptions to the charge are without merit. When the charge is read as a whole no prejudicial error appears.

Some of defendant's exceptions and assignments of error were not discussed in his brief and are therefore deemed abandoned.

Error and remanded.

CAMPBELL and MORRIS, JJ., concur.