State v. Billings

Court of Appeals of North Carolina

State v. Billings

205 S.E.2d 577, 22 N.C. App. 73, 1974 N.C. App. LEXIS 2246

CourtCourt of Appeals of North Carolina

DecidedJune 5, 1974

Docket7423SC231

StatusPublished

Cited by1 cases

This text of 205 S.E.2d 577 (State v. Billings) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Billings, 205 S.E.2d 577, 22 N.C. App. 73, 1974 N.C. App. LEXIS 2246 (N.C. Ct. App. 1974).

Pincite

Opinion

VAUGHN, Judge.

The record on appeal, as filed in this court, contained nothing to show that defendant was ever tried in the District Court on the charge of driving while his license was permanently revoked. There was nothing in the record to indicate that defendant appealed from the District Court to the Superior Court in any of the cases. There was, therefore, nothing to show that the Superior Court had jurisdiction. When lack of jurisdiction is *74 apparent, the Supreme Court will stop the proceedings and arrest judgment. State v. Guffey, 283 N.C. 94, 194 S.E. 2d 827. In response, however, to our request for a sufficient record,, counsel for the State and defendant have filed a stipulation as to the jurisdictional facts and the accuracy of the stipulation has been certified by the clerk of the Superior Court of Alleghany County. We regard the deficiency in the record cured and consider the case on its merit. See State v. Willis, 285 N.C. 195, 204 S.E. 2d 33.

Defendant contends that the judge, in his recapitulation of the evidence, did not repeat evidence elicited on cross-examination. This assignment is without merit. Moreover, any alleged misstatement of the contentions of a party or omission by the court in its review of the evidence must be called to the court’s attention. State v. McClain, 282 N.C. 396, 193 S.E. 2d 113.

When the jury retired the court took a five or ten minute recess and thereafter proceeded with other matters before the court. In a few minutes the jury came in with its verdict. Defendant’s counsel was present. The court heard from counsel for defendant (defendant being present) and then pronounced judgment. Thereafter, defense counsel stated that he had just been advised that defendant was not present when the jury returned in open court. Defendant’s motion for arrest of judgment because of the foregoing was denied and that is the subject of his only other assignment of error. If defendant was not in the courtroom when the jury returned, there is nothing in the record to indicate that his absence was other than voluntary. He therefore waived his right to be present at the rendition of the verdict. He was present when sentence was imposed. There is no merit to the assignment of error. State v. Stockton, 13 N.C. App. 287, 185 S.E. 2d 459.

No error.

Judges Campbell and Morris concur.

Free access — add to your briefcase to read the full text and ask questions with AI

VAUGHN, Judge.

The record on appeal, as filed in this court, contained nothing to show that defendant was ever tried in the District Court on the charge of driving while his license was permanently revoked. There was nothing in the record to indicate that defendant appealed from the District Court to the Superior Court in any of the cases. There was, therefore, nothing to show that the Superior Court had jurisdiction. When lack of jurisdiction is *74 apparent, the Supreme Court will stop the proceedings and arrest judgment. State v. Guffey, 283 N.C. 94, 194 S.E. 2d 827. In response, however, to our request for a sufficient record,, counsel for the State and defendant have filed a stipulation as to the jurisdictional facts and the accuracy of the stipulation has been certified by the clerk of the Superior Court of Alleghany County. We regard the deficiency in the record cured and consider the case on its merit. See State v. Willis, 285 N.C. 195, 204 S.E. 2d 33.

Defendant contends that the judge, in his recapitulation of the evidence, did not repeat evidence elicited on cross-examination. This assignment is without merit. Moreover, any alleged misstatement of the contentions of a party or omission by the court in its review of the evidence must be called to the court’s attention. State v. McClain, 282 N.C. 396, 193 S.E. 2d 113.

When the jury retired the court took a five or ten minute recess and thereafter proceeded with other matters before the court. In a few minutes the jury came in with its verdict. Defendant’s counsel was present. The court heard from counsel for defendant (defendant being present) and then pronounced judgment. Thereafter, defense counsel stated that he had just been advised that defendant was not present when the jury returned in open court. Defendant’s motion for arrest of judgment because of the foregoing was denied and that is the subject of his only other assignment of error. If defendant was not in the courtroom when the jury returned, there is nothing in the record to indicate that his absence was other than voluntary. He therefore waived his right to be present at the rendition of the verdict. He was present when sentence was imposed. There is no merit to the assignment of error. State v. Stockton, 13 N.C. App. 287, 185 S.E. 2d 459.

No error.

Judges Campbell and Morris concur.

Cite This Page — Counsel Stack

Bluebook (online)

205 S.E.2d 577, 22 N.C. App. 73, 1974 N.C. App. LEXIS 2246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-billings-ncctapp-1974.

Opinion

Related

Cite This Page — Counsel Stack