State v. Corl

108 S.E.2d 613 (1959)

250 N.C. 262

STATE v. John Bangle CORL.

No. 513.

Supreme Court of North Carolina.

May 6, 1959.

*614 Malcolm B. Seawell, Atty. Gen., and Lucius W. Pullen, Asst. Atty. Gen., for the State.

Robert L. Warren, Concord, for defendant, appellant.

PARKER, Justice.

The State offered evidence: the defendant none. The State's evidence was amply sufficient to carry the case to the jury in both cases, and to uphold the jury's verdict of guilty as charged in each case. Defendant states in his brief: "This appellant in good conscience cannot argue that there was not sufficient evidence to make a case for the jury, therefore, Exceptions 6 and 7 (motions for judgment of nonsuit) are abandoned."

This appears in the Record: "When the jury was impaneled the Judge summarily discharged seven jurors who had been excused by the State and defendant." To this the defendant did not except. Nothing else in respect to this appears in the Record, except that the defendant in his assignments of error assigns this discharge of seven jurors as error, and states this is his Exception Number 1. In the first headnote in our Reports in Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223, this is said: "Exceptions which appear nowhere in the record except under the assignments of error are ineffectual, since an assignment of error must be supported by exception duly noted." Further, in defendant's brief no reason or argument is stated, or authority cited in support of this assignment of error, as is required by Rule 28, Rules of Practice in the Supreme Court. 221 N.C. 544, 563; State v. Hart, 226 N.C. 200, 37 S.E.2d 487. Black's Law Dictionary, 4th Ed., defines summarily thus: "Without ceremony or delay, short or concise." In addition, it does not appear that defendant was prejudiced by the court's action. This assignment of error is without merit.

Defendant's assignment of error Number 2 is to the court permitting a State Highway Patrolman to testify that he had a certified copy of the official record of the Drivers License Division of the North Carolina Department of Motor Vehicles, and that it was certified and under seal. This assignment of error is overruled.

Defendant's assignment of error Number 3 is to the court's ruling permitting the State to introduce in evidence "that part of the certified copy which states that the driver's license of John Bangle Corl, Route I, Concord, was revoked by the State Department of Motor Vehicles two additional years to prior revocation, from October 31, 1957, to October 31, 1959. Patrolman C. L. Creech. Served on May 30, 1954." This assignment of error is overruled on authority of the opinion written for the Court by Denny, J., in State v. Corl, N.C., 108 S.E.2d 608.

Defendant's assignment of error Number 7 is to the court's failing to instruct the jury in accordance with the requirements of G.S. § 1-180. This assignment of error is untenable. It is a broadside exception. State v. Webster, 218 N.C. 692, 12 S.E.2d 272; State v. Triplett, 237 N.C. 604, 75 S.E.2d 517; Tillman v. Talbert, 244 N.C. 270, 93 S.E.2d 101.

All defendant's assignments of error are overruled. However, the cases must go back for proper sentences.

In the Record, the speeding case appears as Number 7069, and the driving after revocation of license case appears as Number 7070.

The sentence in Case Number 7069 is imprisonment for 60 days, to run consecutive with, and not concurrent with, prison sentences pronounced this day in cases numbered 6711, 6712, 7070, 7268 and 7270. The sentence in Case Number 7070 is imprisonment for 15 months, to run consecutive with, and not concurrent with, prison sentences *615 pronounced this day in cases numbered 6711, 6712, 7069, 7268 and 7270.

Appeals in all these cases are now pending in this Court. In reference to all of these cases, Denny, J., said in State v. Corl, supra, in which cases numbered 6711 and 6712 were consolidated for trial: "In none of the judgments was it specified in what order the respective sentences were to be served." Upon authority of the Court's opinion written by Denny, J., in that case, it is ordered that the sentence in each case here be vacated, and that each case be remanded to the Superior Court of Cabarrus County for proper sentences upon the jury's verdict.

Remanded for proper sentences.