State v. Douglas, 266

• Decision Date: 12 October 1966
• Docket Number: No. 266,266
• Citation: 268 N.C. 267,150 S.E.2d 412
• Parties: STATE v. James Edward DOUGLAS.
• Court: North Carolina Supreme Court

Page 412

150 S.E.2d 412

268 N.C. 267

STATE v. James Edward DOUGLAS.

No. 266.

Supreme Court of North Carolina.

Oct. 12, 1966.

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Bernard A. Harrell, for the State.

Plumides & Plumides, Jerry W. Whitley, Charlotte, for defendant appellant.

SHARP, Justice.

The motions for nonsuit were properly overruled. 'The principle governing this case has been decided by several adjudications on the subject by this Court. The principle is that no man by the show of violence has the right to put another in fear and thereby force him to leave a place where he has the right to be.' State v. Martin, 85 N.C. 508, 509, 510. The evidence does not disclose whether the knife with which defendant threatened Lipinsky was open or shut, nor does it reveal that defendant actually swung the knife at the prosecuting witness. As the Court pointed out in a similar case, however, under the circumstances this was immaterial. State v. Shipman, 81 N.C. 513. Defendant was so near the unarmed Lipinsky that the latter would have been at his mercy had he opened the knife and taken one step forward, 'the work of but a moment.' Lipinsky had no alternative but to encounter an unequal conflict or to abandon the goods taken from his store. In State v. Shipman, supra, the defendant, after using threatening language with reference to the prosecuting witness within his hearing, advanced upon him with a knife, continuing the use of violent and menacing expressions. The evidence left it doubtful as to whether the knife was open, but when the defendant got within 5--6 feet of the witness, the latter retreated. It was held that defendant was properly convicted of an assault. Accord, State v. Martin, supra; State v. Allen, 245 N.C. 185, 95 S.E.2d 526; State v. McIver, 231 N.C. 313, 56 S.E.2d 604, 12 A.L.R.2d 967. See note, 36 N.C.L.Rev. 198 (1957) and State v. Daniel, 136 N.C. 571, 48 S.E. 544.

Defendant makes six assignments of error. Only the two relating to the court's refusal to allow the motions for nonsuit purport to comply with the rules of this Court, which are fully set out and annotated in 254 N.C. 783--824 (1961). Subsequent amendments appear in 259 N.C. 753 (1963) and 264 N.C. 757 (1965). 'We have time and time again called attention to the rules of practice in this Court. They are mandatory.' Walter Corporation v. Gilliam, 260 N.C. 211, 132 S.E.2d 313. A failure to comply with the rules may result in a dismissal of the appeal. Anson Bank & Trust Co. v. Henry, 267 N.C. 253, 148 S.E.2d 7; Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126. Counsel representing an appellant should familiarize himself with the rules of this Court as well as the substantive law of his case.

The Rules of Practice in the Supreme Court of North Carolina apply to indigent defendants and their court-appointed counsel as well as to all other appellants. State v. Price, 265 N.C. 703, 144 N.E.2d 865. The purpose of Rule 19(3), which requires that each assignment of error itself disclose with particularity the specific matters alleged as error without requiring 'a voyage of discovery' through an often voluminous record, is twofold: (1) to enable the members of the Court, in their pre-argument examination of the record, to ascertain the questions involved in the appeal and thus to obtain maximum benefits from the arguments; (2) to reduce the possibility that an error in the trial below will escape detection. 'The assignments of error, when properly prepared, pinpoint the controversy.' State v. Wilson, 263 N.C. 533, 534, 139 S.E.2d 736, 737; State v. Dishman, 249 N.C. 759, 107 S.E.2d 750. Today, no court to which all litigants can appeal as a matter of right can hope to cope with its burgeoning calendar without the full cooperation of its bar. As Chief Justice Clark said in McDowell v. J. S. Kent Co., 153 N.C. 555, 558, 69 S.E. 626, 627, and as Stacy, C.J., repeated in Greene v. Dishman, 202 N.C. 811, 812, 164 S.E. 342, 343:

'What the court desires, and indeed the least that any appellate court requires, is that the exceptions which are Bona fide be presented to the court for a decision, as the points determinative of the appeal, shall be stated clearly and intelligibly by the assignment of errors and not by referring to the record, and therewith shall be set out so much of the evidence or of the charge or other matter or circumstance (as the case may be) as shall be necessary to present clearly the matter to be debated.

'This requirement of the court is not arbitrary but has been dicated by its experience and from a desire to expedite the public business by our being enabled to grasp more quickly the case before us and thus more intelligently follow the argument of counsel. In this practice we have followed what has long been adopted by other courts.'

Defendant's assignments of error 5 and 6 relate to portions of the judge's charge, but those portions to which exceptions were taken are not recopied in the assignment as required by Rule 19(3). Hill v. Logan, 262 N.C. 488, 137 S.E.2d 822. Defendant's sixth assignment of error is as follows:

'EXCEPTION NO. 6 (R p 25): The defendant maintains that this statement by the court goes beyond the mere statement of the defendant's position, and that, in fact, it amounts to a slander or ridicule of the defendant's position. The defendant excepts to this and assigns this as his Assignment of Error $6.'

This will not do. The correct way to have presented this exception would have been in a form substantially as follows:

No. 6. Defendant assigns as error the following portions of his Honor's charge:

'The defendant says and contends in the first place that he wasn't even out there, that he's never been out there, and that he's never been out there by himself or with anyone else, and he didn't take any suit of clothes, that he never saw a suit of clothes in the place of business and that he didn't walk out with any suit of clothes. He had no companion with him who walked out with any suit of clothes. Not having ever been there he couldn't possibly have taken a suit of clothes off a rack, and he had nothing in the world to do with it at all, and that Lipinsky was just imagining things if he thought this man was out there; that Lipinsky never lost a suit of clothes. He didn't have...