State v. Williams

70 S.E.2d 1 (1952) 235 N.C. 429

STATE
v.
WILLIAMS.

No. 435.

Supreme Court of North Carolina.

April 16, 1952.

Harry McMullan, Atty. Gen., Claude L., Love, Asst. Atty. Gen., for the State.

John R. Hood, Lillington, for defendant appellant.

BARNHILL, Justice.

The record does not contain a single exception. Appellant must except to the rulings of the trial judge which he desires this court to review. The exception must be confined to something alleged as error which appears in the record. He must likewise set out in his statement of case on appeal his exceptions thus entered. "No exceptions not thus set out, or filed and made a part of the case or record, shall be considered by this Court * *." Rule 21, Rules of Practice in the Supreme Court, 221 N.C. 558; State v. Parnell, 214 N.C. 467, 199 S.E. 601; Bell v. Nivens, 225 N.C. 35, 33 S.E.2d 66.

An assignment of error alone will not suffice. Only an assignment of error bottomed on an exception duly entered in the record will serve to present a question of law for this court to decide. State v. Jones, 182 N.C. 781, 108 S.E. 376; State v. Parnell, supra.

Even so, failure to have any proper exception or assignment of error does not perforce work a dismissal of the appeal, for the appeal itself constitutes an exception to the judgment. State v. Parnell, supra; Bell v. Nivens, supra.

This exception presents the one question: Is there error appearing on the face of the record? On this appeal it must be answered in the negative. The court below had jurisdiction. The bill of indictment charges a criminal offense. The verdict is in due form and the sentence pronounced is within the limits permitted by law.

Any ambiguity in a verdict will be construed in favor of the defendant. A finding that defendant stole property of the value of more than $50 is not a finding that the property had a value of more than $100. G.S. § 14-72. Hence, notwithstanding anything the trial judge may have said to the jury in his charge, the defendant stands convicted of nothing more than a misdemeanor. He has suffered no loss of citizenship.

The Attorney General moves to dismiss the appeal for the reason the defendant has filed nothing more than a "pass" brief. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 562. There is merit in the motion. Even so, in view of our disposition of the appeal, we may pass the motion without ruling thereon.

As the record fails to disclose any error in the trial of which this court may or will take notice, the judgment entered must be affirmed.

No error.