State v. Humphrey
| Decision Date | 28 November 1923 |
| Docket Number | 433. |
| Parties | STATE v. HUMPHREY. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Mecklenburg County.
Roy Humphrey was convicted of assault on a female, and he appeals. New trial.
Judgments and orders substantially affecting the rights of parties to a cause in the superior court at term must be made in the county and at the term when and where the question is presented.
Indictment for assault with intent to kill, and assault on a female. There was verdict of guilty of assault on a female, with recommendation for mercy, sentence that defendant be imprisoned for 12 months in the county jail and assigned to work the roads of the county during said time, and defendant excepted and appealed, assigning errors. On the imposition of the sentence it was ordered by the court that appellant be allowed 20 days for serving case on appeal on the solicitor and the solicitor be allowed 20 days thereafter to except or serve counter case. The case on appeal by appellant was prepared and served on the solicitor within the time specified, to wit, on June 27, 1923. The counter case containing the only exceptions made, was not served on appellant's attorney until July 25, 1923, five days after time allowed. Thereupon appellant's case on appeal with the record proper was certified to Supreme Court and duly docketed for hearing. Some time after the service of the counter case by the solicitor both cases were sent by him to the judge who had presided at the trial, this apparently on October 25, 1923, and at Fayetteville, N. C., who then undertook to settle a case on appeal, and directed that the same be filed as the case, and that the clerk notify counsel on both sides, and defendant allowed five days thereafter to file exceptions. At the call of the cause in this court the Attorney General suggested a diminution of the record, and moved that the case served by the court be docketed as the only correct and proper case on appeal. Motion disallowed and cause heard and determined on case as tendered and served by appellant.
J. F. Flowers, of Charlotte, for appellant.
J. S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.
Our general statute governing the settlement and service of cases on appeal (C. S. § 643) makes provision as follows:
And in the decisions construing the section it has been heretofore held that the time fixed by this statute for settlement and service of a case could only be changed by agreement of the parties, and that the trial court itself was without power to change or modify the statutory period or to change or interfere with the agreement the parties may have made on the subject. Lindsey v. Knights of Honor, 172 N.C. 818 90 S.E. 1013; Cozart v. Ins. Co., 142 N.C. 522, 55 S.E. 411; Barber v. Justice, 138 N.C. 20, 50 S.E. 445. And it is further held that, where exceptions or a counter case have not been properly made or served within the time specified, the appellant's case shall be deemed approved, and constitute the proper case on appeal for this court, a ruling that is in accord with the express provisions of the statute. Barrus v. Railroad, 121 N.C. 504, 28 S.E. 187; C. C. § 643, and citing among other cases, McNeill v. Railroad, 117 N.C. 642, 23 S.E. 268, and Forte v. Boone, 114 N.C. 176, 19 S.E. 632, to the effect that the failure to except or serve a counter case within the time required is not cured because the judge has thereafter undertaken to settle the case. This being the position that has hitherto prevailed, the Legislature of 1921, considering that it was not well that the trial court should be without any control...
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State v. Moore
... ... Co. v. Simmons, 97 N.C. 89, 1 S.E ... 923. The same rule applies to appellee's exceptions or ... countercase when served too late. State v. Ray, supra; ... Smith v. Smith, 199 N.C. 463, 154 S.E. 737; ... Cummings v. Hoffman, 113 N.C. 267, 18 S.E. 170. It ... was held in State v. Humphrey, 186 N.C. 533, 120 ... S.E. 85, that the trial judge was without authority to change ... appellant's case, though regarded by him as erroneous, ... when appellee's exceptions were not served in time. To ... like effect is the decision in State v. Ray, supra. Of ... course, where there is a ... ...
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State v. Dee
... ... Stevens, 152 N.C. 840, 67 S.E ... 327. When appellant's case is served in time and no ... exception or counter-case served, it is 'the case.' ... State v. Carlton, 107 N.C. 956, 12 S.E. 44." See State ... v. Moore, supra; State v. Ray, 206 N.C. 736, 175 ... S.E. 109; State v. Humphrey, 186 N.C. 533, 120 S.E ... The ... judge is permitted to correct his own errors, but not the ... mistakes of others after the rights of litigants have ... intervened. "It is only when the judge has settled the ... case, in the exercise of his proper jurisdiction, that, upon ... ...
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State v. Tucker
...no presumption against him, and it is not a proper subject for comment by counsel in arguing the case before the jury ( State v. Humphrey, 186 N.C. 533, 120 S.E. 85; State v. Traylor, 121 N.C. 674, 28 S.E. In passing, we observe, however, that this statute does not restrict the prosecuting ......
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Abernethy v. Burns
... ... countercase was served by them. The plaintiff's statement ... of case, therefore, became the "case on appeal." ... C.S.Supp.1924, § 643; State v. Ray, 206 N.C. 736, ... 175 S.E. 109; State v. Humphrey, 186 N.C. 533, 120 ... S.E. 85; Carter v. Bryant, 199 N.C. 704, 155 S.E ... 602; Barber ... ...