The State contends first that the trial court erred in granting defendant a new trial for the reason that defendant failed to raise the question of erroneous jury instructions by perfecting the appeal from his trial. We find merit in this contention.
In not perfecting his appeal defendant failed to preserve his objection to the court’s jury charge.
Formal objection to the charge is not required, an exception and assignment of error being sufficient. However, when no exception is taken to the charge and it is not contained in the record on appeal, it is presumed that the court correctly instructed the jury on every principle of law applicable to the facts.
*529 An assignment of error to the charge, like other assignments of error, must be based upon an exception duly noted in the record, but such exceptions can be taken within the time allowed for the preparation of the case on appeal. This means that while exceptions to the charge may be noted after trial, such exceptions should be included in the appellant’s statement of the case on appeal as served on the appellee.
Where the charge is not incorporated in the appellant’s statement of the case on appeal, but the charge is incorporated in the appellee’s countercase, it would seem that an exception to the charge then entered by the appellant is not timely. 1 Strong’s N.C. Index 3d, Appeal and Error, §§ 31 & 31.1, pp. 264-265. See also 1 Strong’s N.C. Index 3d Appeal and Error, §§ 24, 24.1.
In footnote eight of the Hankerson case, the U.S. Supreme Court stated:
8. Moreover, we are not persuaded that the impact on the administration of justice in those States that utilize the sort of burden shifting presumption involved in this case will be as devastating as respondent asserts. If the validity of such burden shifting presumptions was as well settled in the States that have them as respondent asserts, then it is unlikely prior to Mullaney many defense lawyers made appropriate objections to jury instructions incorporating those presumptions. . . . The North Carolina Supreme Court passed on the validity of the instructions anyway. The States, if they wish, may be able to insulate past convictions by enforcing the normal and valid rule that failure to object to a jury instruction is a waiver of any claim of error. See, e.g. Fed Rule Crim Proc 30.
Although North Carolina does not require an objection to jury instructions to be made at the time of the trial as the federal courts do, proper exception must be taken and presented in the record on appeal or the claim of error is deemed waived. The North Carolina Supreme Court has recently upheld this principle. Several defendants petitioned for a rehearing on the grounds that the trial judge had failed in his jury instruction to place the burden of proving the absence of heat of passion or the absence
*530
of self-defense on the State. In those cases in which the defendant had made such an assignment of error on appeal the Supreme Court allowed a new trial.
State v. Sparks,
Defendant argues on this issue that Judge Ervin’s finding that footnote eight in
Hankerson, supra,
is inapplicable because of N.C. appellate procedure and cites
State v. Hunt,
(b) Exceptions.
* * *
(2) Jury Instructions; Findings and Conclusions of Judge. An exception to instructions given the jury shall identify the portion in question by setting it within brackets or by any other clear means of reference. An exception to the failure to give particular instructions to the jury or to make a particular finding of fact or conclusion of law which was not specifically requested of the trial judge shall identify the omitted instruction, finding, or conclusion by setting out its substance immediately following the instructions given, or findings or conclusions made. A separate exception shall be set out to the making or omission of each finding of fact or conclusion of law which is to be assigned as error.
*531 In State v. Hunt, supra, defendant failed to request a charge concerning the legal principles of alibi evidence at trial, but on appeal excepted to the charge given and argued that the alibi instructions which were omitted due to his failure to request them should have been given automatically without the necessity of a request. Even though Rule 10(b)(2) and State v. Hunt, supra, do not require an objection to be made at the time of the trial in order to preserve the exception, they do require that an exception be duly noted in the record and argued on appeal in order to preserve the claim of error. Since the defendant in the present case failed to preserve his claim of error in the required manner, he is not entitled to raise the question for the first time on a motion for a new trial in a post conviction hearing.
The Post Conviction Hearing Act does not provide a substitute for appeal.
State v. White,
We have taken judicial notice of the various petitions relating to this case filed by defendant in this court. 1 Stansbury’s N.C. Evidence, Brandis Revision § 13. While defendant did not perfect his appeal, his counsel, on 19 December 1974, filed in this court a petition for a writ of certiorari to perfect a late appeal. The petition is accompanied by a record on appeal duly agreed to by counsel for defendant and the district attorney and certified by the Clerk of the Superior Court of Caldwell County.
*532 In the petition defendant’s counsel stated that he had reviewed the transcript of the trial proceedings but was unable to find prejudicial error warranting a new trial. He asked that this court review the record and determine if defendant had received a fair trial. On 2 January 1975 a panel of this court denied the petition for certiorari. We have reviewed the record on appeal attached to the petition and find that no exception was made to any part of the trial judge’s instructions to the jury. Thus, it is established that even if defendant’s appeal had been perfected there would have been no challenge to the jury instructions.
We find it unnecesary to pass upon the State’s contention that Judge Ervin erred in granting a new trial “when the homicide laws of the State of Maine and the State of North Carolina are so different that the Mullaney case is not authority for cases arising under North Carolina law”.
For the reasons stated, the order appealed from is
Reversed.