State v. Higgs

153 S.E.2d 781 (1967) 270 N.C. 111

STATE of North Carolina
v.
Beauford Merrill HIGGS.

No. 411.

Supreme Court of North Carolina.

April 12, 1967.

T. W. Bruton, Atty. Gen., and Millard R. Rich, Jr., Asst. Atty. Gen., for the State.

S. B. Davis, Jr., Roxboro, for defendant.

PER CURIAM.

The case on appeal contains no assignment of error, and the transcript reveals that not a single objection was made or exception entered during the trial. Notwithstanding, after being informed by the court that he was entitled to appeal as a matter of right at the expense of the State, defendant gave notice of appeal, and counsel was appointed to bring up the case.

In preparing the case on appeal, counsel included a birth certificate which had not been introduced in evidence at the trial. It shows, inter alia, that a white male named Burford Murril Higgs was born in Person County on June 22, 1950. In this court, counsel moves in arrest of judgment for that defendant had been charged and tried under the wrong name. The motion is overruled. Even if we assume that the inserted birth certificate is defendant's, it can avail him nothing. He was tried under the name of Beauford Merrill Higgs without objection or challenge, and he was sentenced under the same name. On the trial, no point was made of the slight variance between the given names of Beauford and Burford and of the slight variance in the spelling of the middle name, and defendant will not now be heard to say that he is not the man named in the bill of indictment. "Where defendant is tried without objection under one name, and there is no question of identity, he will not be allowed on appeal to contend that his real name was different." 2 Strong, N.C. Index, Indictment and Warrant § 10 (1959). Furthermore, the names Beauford and Burford sound enough alike to come within the rule of idem sonans, as do the names Merrill and Murril. State v. Vincent, 222 N.C. 543, 23 S.E.2d 832.

When the case on appeal contains no assignments of error, the judgment must be sustained, unless error appears on the face of the record. State v. Williams, 268 N.C. 295, 150 S.E.2d 447. An examination of the record proper reveals

No Error.