State v. Samuels

260 S.E.2d 427 (1979)

298 N.C. 783

STATE of North Carolina v. Willie SAMUELS.

No. 80.

Supreme Court of North Carolina.

December 4, 1979.

*429 Asst. Public Defender Tom Dickinson and Public Defender Fritz Y. Mercer, Jr., Charlotte, for defendant.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Marilyn R. Rich, Raleigh, for the State.

COPELAND, Justice.

The record on appeal contains three exceptions, properly made, which are the basis of three assignments of error, properly set out at the end of the record. These assignments of error were not brought forward or discussed in the brief; therefore, they are deemed abandoned. Rule 28(a), (b)(3), Rules of Appellate Procedure; State v. Davis, 272 N.C. 469, 158 S.E.2d 630 (1968); State v. Battle, 271 N.C. 594, 157 S.E.2d 14 (1967) (per curiam); State v. Strickland, 254 N.C. 658, 119 S.E.2d 781 (1961). These cases arose under former Rule 28, Rules of Practice in the Supreme Court; however, our present Rule 28 maintains the same rule as former Rule 28 with respect to requiring that the assignments of error be brought forward and discussed in the brief in order to properly present questions for review on appeal.

Defense counsel set forth one Question Presented in his brief. In it he stated that his examination of the record revealed no error prejudicial to the defendant. He has asked us to examine the entire record to determine whether we find prejudicial error warranting a new trial.

This question presented in the brief was not made the basis of any assignment of error. Normally, this Court will not consider questions not properly presented by objections duly made, exceptions duly entered, and assignments of error properly set out. State v. Brooks, 275 N.C. 175, 166 S.E.2d 70 (1969); 1 Strong's N.C. Index 3d, Appeal and Error § 24. Under our former Rules of Practice in the Supreme Court, the appeal itself constituted an exception to the judgment and presented for review any error appearing on the face of the record proper. State v. Cox, 281 N.C. 131, 187 S.E.2d 785 (1972); State v. Kirby, 276 N.C. 123, 171 S.E.2d 416 (1970). Our present Rules of Appellate Procedure, effective 1 July 1975, obliterated the former distinction between the "record proper" and the "settled case on appeal." Instead, the single concept of "record on appeal" is used and the composition of the record on appeal is governed by Rule 9(b), Rules of Appellate *430 Procedure. State v. McMorris, 290 N.C. 286, 225 S.E.2d 553 (1976); State v. Adams, 298 N.C. 802, 260 S.E.2d 431 (1979).

However, our present Rule 10(a), Rules of Appellate Procedure, does provide that,

"[U]pon any appeal duly taken from a final judgment any party to the appeal may present for review, by properly raising them in his brief, the questions whether the judgment is supported by the verdict or by the findings of fact and conclusions of law, whether the court had jurisdiction of the subject matter, and whether a criminal charge is sufficient in law, notwithstanding the absence of exceptions or assignments of error in the record on appeal." (Emphasis added.)

Also, G.S. 15-173 allows a defendant to appeal the denial of his motion for nonsuit made at the close of the State's evidence (if the defendant presents no evidence) or made at the close of all the evidence (if the defendant does present evidence), "without the necessity of the defendant's having taken exception to such denial."

Therefore, it is clear that a defendant may properly present on appeal the questions enumerated in Rule 10(a), without taking any exceptions or making any assignments of error in the record and may properly present for review the denial of his motion for nonsuit under G.S. 15-173 without making any exception in the record. However, in both these situations, the defendant must still bring those questions forward in his brief, argue them and cite authorities in support of his arguments. Rule 28(a), (b)(3). Failure to do so means that those questions are not properly presented for review. Rule 28(a), (b)(3); State v. McMorris, supra; State v. Adams, supra. Indeed, Rule 10(a) states that the questions enumerated there may be properly presented for review without exceptions or assignments of error being made "by properly raising them in his brief." Rule 28(a), (b)(3) then elaborates on the requirements of the brief in this regard as discussed above. We have the power under Rule 2, Rules of Appellate Procedure, to suspend or vary the requirements of the Rules of Appellate Procedure in order "[t]o prevent manifest injustice to a party, or to expedite decision in the public interest . . . except as otherwise expressly provided by these rules" and Rule 28(a), (b)(3) does not expressly provide otherwise.

From the foregoing, it is clear that no questions have properly been presented for review in this case. Nevertheless, due to the seriousness of the conviction and the sentence in this case, we have elected, pursuant to our inherent authority and Rule 2, to review the record on appeal with regard to the sufficiency of the evidence to take the case to the jury and the questions presented by Rule 10(a) and we find no prejudicial error. Furthermore, we have scrutinized the entire record on appeal to determine whether any error prejudicial to the defendant occurred in this trial.

There was sufficient evidence of every essential element of the crime of first degree rape to take this case to the jury. One essential element of the crime of first degree rape is that defendant be more than sixteen years of age. G.S. 14-21(1)b. Here, the jury had ample opportunity to view the defendant and estimate his age. See, State v. Evans, 298 N.C. 263, 258 S.E.2d 354 (1979). The trial judge properly conducted this trial, made no erroneous evidentiary rulings, properly conducted the voir dire on the pretrial identification procedures and the in-court identification, and correctly charged the jury. Our examination of the record reveals no prejudicial error.

We caution members of the bar to recognize that, "[i]t is not the function of the appellate courts to search out possible errors which may be prejudicial to an appellant; it is an appellant's duty, acting within the rules of practice, to point out to the appellate court the precise error of which he complains." Nye v. University Development Co., 10 N.C.App. 676, 678, 179 S.E.2d 795, 796, cert. denied, 278 N.C. 702, 181 S.E.2d 603 (1971). Appeals such as this are subject to dismissal for failure to properly present any questions for review under the *431 requirements of Rule 28(a), (b)(3), unless we elect pursuant to Rule 2, as we have done in this case, to suspend or vary the requirements of the Rules of Appellate Procedure.

NO ERROR.