State v. Bauler ( 1972 )

MALLARD, Chief Judge.

Defendants, who are represented by the same attorney, were sentenced on 12 January 1972. The record on appeal was not filed in this court until 18 May 1972. This was after the period of ninety days had elapsed from the date of the judgment appealed from. Rule 5 of the Rules of Practice in the Court of Appeals requires that the appeal be docketed “within ninety days after the date of the judgment... appealed from . . . provided, the trial tribunal may, for good cause, extend the time not exceeding sixty days, for docketing the record on appeal.” No extension of time for docketing appears in this record; therefore, inasmuch as the record on appeal was not docketed within the time prescribed by the rules, the appeal should be dismissed. However, we do not dismiss the appeal but consider it on its merits.

The evidence for the State tended to show that on 21 October 1971 about 8:00 p.m., F. M. Woodley of the Plymouth Police Department and Robert Sawyer, a deputy sheriff in Washington County, went to an upstairs garage apartment located at 704% Washington Street in Plymouth. The officers had gone to this address to deliver an urgent message to a boy named Bobby. While there, the police officer went to the door and knocked while the deputy sheriff remained in the car. The deputy sheriff could see the upstairs apartment which was “lit up” and contained two windows, and he saw four men in the apartment. When the police officer knocked on the door, these men jumped up and began moving around and one came downstairs. The deputy sheriff saw the remaining three men run into the other room, come back into the room with the double windows and immediately thereafter run back; and he identified the men as defendants Everett, Biggs and Bauler. He then saw a plastic bag come “floating down” from the window. No one saw either of these defendants throw or have in his possession the plastic bag which contained marijuana.

At the close of all the evidence, the defendants moved for a directed verdict of not guilty which was denied.

“Upon a motion for judgment as of nonsuit or for a directed verdict at the close of the State’s evidence, and renewed by the defendant after the introduction of his own evidence, all the evidence upon the whole record tending to sustain a conviction will be considered in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom. (Citations omitted.)” State v. Bruton, 264 N.C. 488, 142 S.E. 2d 169 (1965). See also, State v. Davis, 246 N.C. 73, 97 S.E. 2d 444 (1957) and State v. Gay, 224 N.C. 141, 29 S.E. 2d 458 (1944).

After careful consideration of all the evidence in this case, we conclude that the evidence against these two defendants (the case of the defendant Biggs is not before us) is insufficient to sustain the verdict rendered in the superior court. Therefore, the judgment entered in the superior court is reversed.

Reversed.

Judges Campbell and Britt concur.