Opinion
No. 6929SC275
Filed 23 July 1969
Criminal Law 159 — failure to file stenographic transcript agreed to by solicitor Appeal is dismissed for failure to file with the record on appeal a stenographic transcript of the evidence of the trial tribunal which had been agreed to by the solicitor. Court of Appeals Rules 19(d) (2) and 48.
APPEAL by defendants from McLean, J., at the January 1969 Session of McDOWELL Superior Court.
Attorney General Robert Morgan and Staff Attorney Carlos W. Murray, Jr., for the State.
Thomas White by Alton T. Cummings for defendant appellants.
By indictment proper in form, defendants, father and son, were charged with felonious breaking and entering and larceny. They pleaded not guilty but the jury found them guilty as charged. From judgments imposing substantial prison sentences as to Grover Cleveland Norman, the father, and lesser sentences as to Billy Dean Norman, the son, to be served at a youthful offender's center, both defendants appealed.
On 9 June 1969, the attorney general filed in this Court a motion to dismiss defendants' appeal pursuant to Rules 19(d) (2) and 48 of our Rules of Practice for the reason that defendants failed to file the complete stenographic transcript of the evidence in the trial tribunal with their record on appeal.
Our clerk's records disclose that the record on appeal was filed in his office on 10 April 1969 and that defendants elected to state the evidence under Rule 19(d) (2), but the transcript of testimony was not filed until 10 June 1969. The judgments were entered on 10 January 1969, and the trial judge allowed defendants 30 days to prepare and serve case on appeal and allowed the State 20 days after such service to prepare countercase. The record contains a statement by defendants' counsel that he "tendered" the case on appeal on 9 April 1969. The solicitor of the Eighteenth Solicitorial District filed a certificate in this Court on 11 June 1969 stating that the case on appeal was served on him on 10 April 1969 (the same day it was filed in this Court) and that no statement of the evidence or charge of the court was filed with him by the defendants. The transcript of testimony bears no certificate except that of the court reporter.
Although our Rule 19(d) (2) has been repealed by the Supreme Court, effective 1 July 1969, appeals heard during the 1969 Spring Session are not affected by the repeal. The pertinent portion of the rule provides as follows: "As an alternative to the above method (as a part of the record on appeal but not to be reproduced), the appellant shall cause the complete stenographic transcript of the evidence in the trial tribunal, as agreed to by the opposite party or as settled by the trial tribunal as the case may be, to be filed with the Clerk of this Court * * *" (Emphasis added.) For failure of defendants to comply with the rule, the motion to dismiss their appeal is allowed. Inman v. Harper, 2 N.C. App. 103, 162 S.E.2d 629; Shephard v. Highway Comm., 2 N.C. App. 223, 162 S.E.2d 520.
Nevertheless, we have carefully reviewed the record before us, with particular reference to the assignment of error brought forward and discussed in defendants' brief, and find that defendants received a fair trial, free from prejudicial error.
Appeal dismissed.
MALLARD, C.J., and PARKER, J., concur.