State v. . Barnett

ClaeKSON, J. N. C. Code, 1939 (Michie), sec. 643, is as follows: “The appellant shall cause to be prepared a concise statement of the case, embodying the instructions of the judge as signed by him, if there *456 be an exception thereto, and the request o£ the counsel of the parties for instructions if there be any exception on account of the granting or withholding thereof, and stating separately, in articles numbered, the errors alleged. A copy of this statement shall be served on the respondent within fifteen days from the entry of the appeal taken; within ten days after such service the respondent shall return the copy with his approval or specific amendments endorsed or attached; if the case be approved by the respondent, it shall be filed with the clerk as a part of the record; if not returned with objections within the time prescribed, it shall be deemed approved: Provided, that the judge trying the case shall have the power, in the exercise of his discretion, to enlarge the time in which to serve statement of case on appeal'and exceptions thereto or counter statement of case.” In Cressler v. Asheville, 138 N. C., 482 (483-4), it is written: “There is no ‘case agreed’ on appeal and none ‘settled’ by the judge, and there bejng no error upon the face of the record proper the judgment must be affirmed. See numerous cases cited in Clark’s Code (3d Ed.), p. 760. Errors occurring during the trial can be presented only by a ‘case on appeal.’ It is only when the errors are presented by the record proper, as in an appeal from a judgment upon a demurrer, or upon a case agreed, or judgment granting or refusing an injunction to the hearing heard upon the affidavits, that a case on appeal can be dispensed with. Ibid., p. 770. When there is a defect of jurisdiction, or the complaint fails to state a cause of action, that is a defect upon the face of the record proper of which the Court will take notice. Cummings v. Hoffman, 113 N. C., 267; Appomattox Co. v. Buffaloe, 121 N. C., 37.” In Dixon v. Osborne, 201 N. C., 489 (493), citing numerous authorities, is the following: “Plaintiffs contend that there is error in the judgment in this action rendered at May Term, 1931. This contention is presented by their appeal from the judgment. It has been uniformly held by this Court that an appeal is itself an exception to the judgment and to any other matter appearing on the face of the record.” Orange County v. Atkinson, 201 N. C., 593 (596); Best v. Garris, 211 N. C., 305 (308). The defendant contends that no judgment could be rendered in the court below as it does not appear from the record that the defendant entered any plea to the bill of indictment found against him. We cannot so hold. The record discloses that a true bill was found against defendant: “Did unlawfully, willfully and feloniously assault Jessie Baker, with a certain deadly weapon, to wit: a knife, with the felonious intent to kill and murder the said Jessie Baker.” It further appears that the case was called for trial before the judge and a jury. The record is as follows : “The following Jurors were duly chosen, sworn and impaneled to try the issues joined.” *457 The verdict recites: “After bearing the evidence and charge of the court, the Jury so impaneled returned the following verdict: That the defendant is Guilty of Assault with a Deadly Weapon.” The record says in no uncertain language: “The following jurors were duly chosen, sworn and impaneled to try the issues joined.” What were the judge and jury doing? It goes without saying that they were trying defendant on issues joined. The issues were “Guilty” or “Not Guilty.” Under the facts we think the record presumes regularity, and we so hold. S. v. Harvey, 214 N. C., 9 (11); 22 C. J., 626. The judgment of the court below is Affirmed.