State v. Ray
| Decision Date | 20 June 1934 |
| Docket Number | 542. |
| Citation | 175 S.E. 109,206 N.C. 736 |
| Parties | STATE v. RAY. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Orange County; Devin, Judge.
J Clyde Ray was convicted of embezzlement, and he appeals.
New trial ordered.
On appeal from conviction for embezzlement, appellant's statement of case became statement of case on appeal where state's objections were not filed within ten days after service of appellant's case as required by statute. C.S.Supp.1924, § 643.
Where there is controversy as to whether exceptions to statement of case on appeal were served within time fixed, or service within such time was waived, trial court has duty to find facts, hear motions, and enter appropriate orders thereon.
Criminal prosecution tried upon indictment charging the defendant with embezzlement.
Verdict "Guilty thereof in the manner and form as charged in the bill of indictment."
Judgment Imprisonment in the state's prison for a term of three years.
Defendant appeals, assigning errors.
L. P. McLendon and S. M. Gattis, of Hillsboro, for appellant.
Dennis G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.
The trial was held at the December term, 1933, Orange superior court, which convened December 11. An appeal was prayed and notice duly given. Within fifteen days thereafter, to wit, on December 23, the defendant made out and served his statement of case on appeal. On January 6 following, the solicitor prepared and served exceptions or objections to the defendant's statement. This was too late in the absence of any extension or waiver of time. C. S. Supp. 1924, § 643. None appears of record. Hence the defendant's statement became the statement of case on appeal. State v. Humphrey, 186 N.C. 533, 120 S.E. 85; State v. Price, 110 N.C. 599, 15 S.E. 116; Texas Co. v. Fuel Co., 199 N.C. 492, 154 S.E. 829; Barrus v. Wilmington & W. R. Co., 121 N.C. 504, 28 S.E. 187; Carter v. Bryant, 199 N.C. 704, 155 S.E. 602.
Objections to appellant's statement of case on appeal, not served within the time fixed by statute (ten days after service of appellant's case), by order of court, or by agreement of counsel, may be disregarded as unavailing or nugatory. Smith v. Smith, 199 N.C. 463, 154 S.E. 737; Cummings v. Hoffman, 113 N.C. 267, 18 S.E. 170.
Of course, where there is a controversy as to whether the exceptions were served within the time fixed or allowed, or service within such time waived, it is the duty of the trial court to find the facts, hear motions, and enter appropriate orders thereon. Smith v. Smith, supra; Holloman v Holloman, 172 N.C. 835, 90 S.E. 10; Barrus v. Wilmington & W....
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