State v. Barnes

CAMPBELL, Judge.

Judgment was entered on 10 November 1972, at which time defendant gave notice of appeal. Defendant procured an order extending time to docket the appeal for an additional 30 days and thus had 120 days within which to docket the record on appeal with this Court, or until 12 March 1973. The record was *265 not filed with this Court until 19 March 1973. This did not comply with the rules of this Court.

Additionally, defendant has recorded five assignments of error, only two of which are supported by exceptions duly noted in the record. Those two exceptions, however, are not properly numbered as required by Rule 21 of the Rules of Practice in the Court of Appeals. Exceptions not duly noted in the record, but appearing only under the purported assignments of error will not be considered. Midgett v. Midgett, 5 N.C. App. 74 , 168 S.E. 2d 53 (1969).

While the defendant did take exception to, and assigned as error, the trial court’s failure to enter judgment as in case of nonsuit and to direct a verdict of not guilty, these exceptions are not preserved in the brief. Rule 28 requires the appellant, in his brief, to point out the numbered exception upon which he is relying and indicate upon what page of the printed record the exception may be found. State v. McDonald, 11 N.C. App. 497 , 181 S.E. 2d 744 (1971).

Further, although the defendant assigns as error a portion of the trial court’s charge such assignment of error is defective not only because it is not based upon an exception in the record, but also because it is not properly set out in the record. An assignment of error to the charge should quote the portion of the charge to which appellant objects, and assignments based on failure to charge should set out appellant’s contention as to what the court should have charged. A mere reference in the assignment of error to the record where the exception appears will not present the alleged error for review. State v. Brown, 9 N.C. App. 534 , 176 S.E. 2d 907 (1970).

The rules of this Court are to assist the Court to locate the error complained of and expedite the work of the Court. Just sending up a mass of material and requesting the Court to look it over is not helpful.

If the Rules of Practice in the Court of Appeals are not complied with, the appeal may be dismissed. However, since the appeal itself is an exception to the judgment which presents for review error appearing on the face of the record, we undertake to perform such a review.

The indictment is validly drawn; the defendant entered a plea of not guilty upon which the ease was tried; the verdict *266 conforms to the issues in the case; and the judgment and"sentence is in accordance with the maximum allowed by statute.

The State’s evidence was sufficient to go to the jury. The State is not required to prove exclusive possession or control of a controlled substance. State v. Sutton, 14 N.C. App. 161 , 187 S.E. 2d 389 (1972).

The evidence of possession, which was circumstantial in nature, was sufficient evidence to place the defendant within such close juxtaposition to the narcotic drug as to justify the jury in concluding that the same was in his possession. State v. Harvey, 281 N.C. 1 , 187 S.E. 2d 706 (1972).

The facts in the instant case are distinguishable from those in State v. Chavis, 270 N.C. 306 , 154 S.E. 2d 340 (1967), in that here the officer saw both the box and the marijuana in defendant’s possession.

Affirmed.

Judges Morris and Vaughn concur.