State v. Garnett
| Citation | 4 N.C.App. 367,167 S.E.2d 63 |
| Decision Date | 30 April 1969 |
| Docket Number | No. 6926SC46,6926SC46 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Thomas GARNETT. |
Atty. Gen. Robert Morgan and Staff Atty. Christine Y. Denson, for State.
Elbert E. Foster, Charlotte, for defendant appellant.
The verdict was returned by the jury on 13 August 1968. Appeal entries were signed by the judge on 15 August 1968. The record on appeal was not docketed in the Court of Appeals until 18 November 1968. No order extending the time for docketing the record on appeal appears in the record. The defendant failed to docket the record on appeal within the time provided by Rule 5 of the Rules of Practice in the Court of Appeals, the pertinent parts thereof providing as follows:
'If the record on appeal is not docketed within ninety days after the date of the judgment, order, decree, or determination appealed from, the case may be dismissed under Rule 17, if the appellee shall file a proper certificate prior to the docketing of such record on appeal; provided, the trial tribunal may, for good cause, extend the time not exceeding sixty days, for docketing the record on appeal.'
The above portion of Rule 5 providing for a dismissal is permitted under Rule 17 if the appellee shall file a proper certificate prior to the docketing of such record on appeal. However, Rule 48 reads:
'If these rules are not complied with, the appeal may be dismissed.'
Upon the failure of a defendant to docket the record on appeal as provided by Rule 5 this Court may under the provisions of Rule 48 on its own motion dismiss the appeal.
The defendant chose to submit the evidence in this case under the provisions of Rule 19(d)(2) as it was prior to its repeal on 11 February 1969 by the Supreme Court of North Carolina pursuant to authority contained in G.S. § 7A--33. Rule 19(d)(2) (), permitted the stenographic transcript of the evidence in the trial tribunal to be filed with the clerk of the Court of Appeals, and then the appellant in an appendix to his brief would set forth in succinct language with respect to those witnesses whose testimony is deemed to be pertinent to the question raised on appeal, what he says the testimony of such witness tends to establish with citation to the page of the stenographic transcript in support thereof. Defendant does not have an appendix to his brief although he attempts to raise questions on appeal relating to the evidence.
Defendant's appeal should be dismissed because of the failure to docket the record on appeal in time, and the failure to comply with the rules with respect to attaching an appendix to the brief concerning the evidence when it was pertinent to the questions raised on appeal. However, we do not dismiss the appeal but consider it on its merits.
The evidence offered by the State tends to show that on 6 July 1968 at about 2:15 a.m., two police officers of the City of Charlotte were on duty patrolling in an automobile in the Freedom Village Shopping Center area in the City of Charlotte. They cut off the lights of their automobile and drove behind the stores, and as they approached an alleyway between the Advance Store building and the branch post office building, they observed three men standing behind an automobile loading three television sets into its open trunk. Another television set was nearby. Edna Barnes, the owner of the automobile, was in the driver's seat; she was arrested and charged with breaking and entering and larceny. The defendant, Thomas Garnett, was one of the three men loading television sets into the rear of the automobile. As the officers approached the automobile, the defendant and the other two men ran. All three were pursued, caught, and arrested for breaking and entering and larceny. The television sets they had were the property of Advance Store, and as late as 9:00 p.m. on 5 July 1968 these television sets were located inside and near the front of its store building in Freedom Village Shopping Center. The television sets were offered into evidence. The glass front of the store building had been broken and 'a six foot hole knocked in the plate glass window' some time after 9:00 p.m. when the store was closed and before the officers observed it after their arrival at about 2:15 a.m. the next morning. After the officers had arrested the three men and one woman, they searched the Advance Store building and found another woman by the name of Doris Jackson concealed in the building behind some boxes. None of the persons apprehended worked for Advance Store and none had authority to enter the building on this occasion.
Defendant contends that the court committed error when it failed to rule on his motion for judgment as of nonsuit at the close of all the evidence. This contention is without merit. There was no evidence offered by this defendant or either of the other defendants who were tried with him. The transcript of the testimony reveals that the court specifically denied this defendant's motion for judgment as of nonsuit made at the close of the State's evidence, which in this case was the only evidence offered. This defendant, after announcing that he had no evidence, renewed his motion for judgment as of nonsuit, and the trial court did not specifically rule upon this latter motion but submitted the case to the jury. Judges should rule on each motion for nonsuit. However, under the circumstances presented here, there was no prejudicial error committed by failing to specifically rule on this defendant's second motion for nonsuit.
There was ample evidence against this defendant to withstand the motion for judgment as of nonsuit and to require the submission of this case to the jury. 'On motion to nonsuit, the evidence must be considered in the light most favorable to the state, and the state is entitled to every reasonable intendment thereon and every reasonable inference therefrom.' 2 Strong, N.C. Index 2d, Criminal Law, § 104.
Defendant argues and contends that the trial court committed error in overruling defendant's objections and motions to strike certain questions and answers regarding other persons found at the scene of the crime and not then on trial. We have carefully considered each of these and are of the opinion that no prejudicial error appears.
Defendant contends that '(t)he Court erred in charging the Jury that the defendant could be found guilty as an aider and abettor and referring to other persons not on trial, and there being no showing at any time, before or after judgment, that a principal had been convicted.' This...
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State v. Hernandez
......N.C. Gen.Stat. § 15A-1443(a) (2007). . This case seems to be a case of first impression since there are no North Carolina cases examining the issue of whether an error resulting in an appealable verdict was prejudicial to defendants. However, in State v. Garnett, 4 N.C.App. 367, 167 S.E.2d 63 (1969), overruled on other grounds by State v. Barnes, 324 N.C. 539, 540-41, 380 S.E.2d 118, 119-20 (1989), this Court addressed a similar issue. In Garnett, the defendant appealed his conviction, inter alia, based on the trial court's failure to rule on his ......
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State v. Barnes
...State v. Smith, 24 N.C.App. 498, 211 S.E.2d 539 (1975); State v. Blackshear, 10 N.C.App. 237, 178 S.E.2d 105 (1970); State v. Garnett, 4 N.C.App. 367, 167 S.E.2d 63 (1969); State v. Perry, 3 N.C.App. 356, 164 S.E.2d 629 Except as herein modified, the decision of the Court of Appeals is affi......
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State v. Wiggins
...present, aiding and abetting in a crime actually perpetrated by another, is equally guilty with the actual perpetrator.' State v. Garnett, 4 N.C.App. 367, 167 S.E.2d 63.' State v. Berryman, 10 N.C.App. 649, 652, 179 S.E.2d 875, 878. However, presence, either actual or constructive, is indis......
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State v. Ledbetter, 6929SC154
...trial. The failure to make a formal and specific ruling under the circumstances of this case was not prejudicial error. See State v. Garnett, N.C.App., 167 S.E.2d 63, for a discussion by Mallard, C.J., of a similar problem involving a trial judge's failure to specifically rule upon a motion......