State v. Hunter ( 1957 )

96 S.E.2d 840 (1957) 245 N.C. 607

STATE
v.
Mattle HUNTER.

No. 78.

Supreme Court of North Carolina.

March 6, 1957.

Atty. Gen. George B. Patton, Asst. Atty. Gen. T. Wade Bruton, for the State.

McLean, Gudger, Elmore & Martin, Asheville, for defendant.

PER CURIAM.

After the case on appeal was docketed in this Court, a further stipulation and motion to amend the record was filed in the office of the Clerk of the Supreme Court.

The motion is to amend the former stipulation by striking out the reference therein to the bill of indictment and to insert in lieu thereof the following: "That this cause was tried upon two warrants issued by the City of Asheville Police Court charging the defendant with unlawful possession of whiskey, keeping liquor for sale, and carrying, transporting and delivering of liquor." The motion likewise contained a further stipulation "that said warrants need not be printed as a part of the record in this appeal."

We have examined the exceptions and assignments of error and, in our opinion, they present no prejudicial error in the trial below. However, if they did disclose error, they are not properly before this Court for decision.

The State, through the Attorney General, moved to dismiss the appeal on authority of State v. Currie, 206 N.C. 598, 174 S.E. 447, for that the record on appeal is fatally defective in that it contains no bill of indictment.

On appeal in criminal cases, the indictment or warrant, and the plea on which the defendant was tried in the court below, the verdict, and the judgment appealed from, are essential parts of the transcript. State v. Dobbs, 234 N.C. 560, 67 S.E.2d 751; State v. Jenkins, 234 N.C. 112, 66 S.E.2d 819; State v. Ravensford Lumber Co., 207 N.C. 47, 175 S.E. 713; State v. Currie, supra; Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126.

Here we have an agreed case on appeal which by stipulation omits the inclusion of the bill of indictment in the record on appeal. This is fatal to the appeal. Moreover, the motion to amend is in itself proof of the soundness of our decisions in this respect. It is now made to appear that the defendant was not tried upon a bill of indictment as the agreed case purports to show, but upon two warrants issued by the Police Court of the City of Asheville and returnable to that court. What disposition was made of these cases in the inferior court or how they reached the Superior Court is not made to appear. This alone is sufficient to require a dismissal of the appeal. State v. Thomas, 236 N.C. 454, 73 S.E.2d 283; State v. Bailey, 237 N.C. 273, 74 S.E.2d 609; State v. Banks, 241 N.C. 572, 86 S.E.2d 76. In addition to this defect, the motion to amend the record as indicated herein does not cure the fatal defect appearing on the face of the record since the solicitor and the attorneys for the defendant expressly stipulated "that said warrants need not be printed as a part of the record in this appeal." As Stacy, C. J., said in the case of State v. Ravensford Lumber Co., supra [207 N.C. 47, 175 S.E. 714]: "We can judicially know only what properly appears on the record."

Appeal Dismissed.