State v. McNeil , 280 N.C. 159 ( 1971 )

185 S.E.2d 156 (1971) 280 N.C. 159

STATE of North Carolina
v.
Joseph McNEIL and Joseph Bridges.

No. 124.

Supreme Court of North Carolina.

December 15, 1971.

W. Arnold Smith, Raleigh, for defendant-appellant McNeil.

Earle R. Purser, Raleigh, for defendant-appellant Bridges.

Robert Morgan, Atty. Gen., and Millard R. Rich, Jr., Asst. Atty. Gen., for the State.

HUSKINS, Justice.

Failure to nonsuit constitutes defendants' first assignment of error. Motion to nonsuit requires the trial judge to consider the evidence in the light most favorable to the State, take it as true, and give the State the benefit of every reasonable inference to be drawn therefrom. State v. Vincent, 278 N.C. 63, 178 S.E.2d 608 (1971). "Regardless of whether the evidence is direct, circumstantial, or both, if there is evidence from which a jury could find that the offense charged has been committed and that defendant committed it, the motion to nonsuit should be overruled." State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968). When considering such motion the court is not concerned with the weight of the testimony but only with its sufficiency to carry the case to the jury and sustain the indictment. State v. Primes, 275 N.C. 61, 165 S.E.2d 225 (1969). When tested by these principles there is abundant evidence to carry the cases against both defendants to the jury. The motions for compulsory nonsuit were properly denied.

Defendants' motions to set aside the verdict and for a new trial are merely formal and require no discussion. Such motions are addressed to the discretion of the trial court and refusal to grant them is not reviewable. State v. Reddick, 222 N.C. 520, 23 S.E.2d 909 (1943); State v. Downey, 253 N.C. 348, 117 S.E.2d 39 (1960). These motions were properly denied.

Finally, defendants moved in arrest of judgment and assign as error the denial of their motions.

"A motion in arrest of judgment is one made after verdict and to prevent entry of judgment, and is based upon the insufficiency of the indictment or some other fatal defect appearing on the face of the record." State v. McCollum, 216 N.C. 737, 6 S.E.2d 503 (1940). Judgment may be arrested when and only when some fatal error or defect appears on the face of the record proper. State v. Higgins, 266 N.C. 589, 146 S.E.2d 681 (1966). "When based on such defect, the motion may be made at any time, even in the Supreme Court on appeal; and, in the absence of such motion, the Court ex mero motu will examine the record proper for such defect." State v. Kirby, 276 N.C. 123, 171 S.E.2d 416 (1970). But review is ordinarily limited to the question of whether error of law appears on the face of the record and whether the judgment is regular in form. State v. Mallory, 266 N.C. 31, 145 S.E.2d 335 (1965). When error does not appear on the face of the record proper the judgment will be affirmed. Seibold v. Kinston, 268 N.C. 615, 151 S.E.2d 654 (1966). "The record proper in any action includes only those essential proceedings which are made of record by the law itself and as such are self-preserving.. . . The evidence in a case is no part of the record proper. . . . In consequence, defects which appear only by the aid of evidence cannot be the subject of a motion in arrest of judgment." State v. Gaston, 236 N.C. 499, 73 S.E.2d 311 (1952).

When the foregoing rules regulating practice and procedure in criminal actions are applied to the record on this appeal, it is evident the motions in arrest of judgment were properly denied. An examination of the record proper reveals no error. The judgments must therefore be sustained. State v. High, 279 N.C. 487, 183 S.E.2d 633 (1971).

No error.