162 S.E.2d 97 | N.C. Ct. App. | 1968
STATE of North Carolina
v.
Vance Lender EVANS.
Court of Appeals of North Carolina.
*98 T. W. Bruton, Atty. Gen., and Millard R. Rich, Jr., Asst. Atty. Gen., for the State.
Vaughan S. Winborne and Gilbert B. Swindell, Raleigh, for defendant appellant.
CAMPBELL, Judge.
The defendant in this case submitted the complete transcript of the evidence under Rule 19(d)(2), but contrary to the provisions of that rule, the defendant did not attach an appendix to his brief setting forth in succinct language, with respect to those witnesses whose testimony he deemed to be pertinent to the questions raised on appeal, what he says the testimony of such witnesses would tend to establish. The defendant thereby imposed upon this Court the necessity of a voyage of discovery through the record. Ordinarily, this Court would dismiss such an appeal ex mero motu for failure to comply with the rules. Despite the failure to comply with the rules of this Court, we have reviewed the testimony and are of the opinion that the failure of the State's evidence to identify the merchandise sold to Demps as being the same merchandise taken from Gales Tavern places this case within the doctrine of State v. Parker, 268 N.C. 258, 150 S.E.2d 428, and State v. Foster, 268 N.C. 480, 151 S.E.2d 62. The motion for judgment as of nonsuit should have been allowed.
Reversed.
BRITT and MORRIS, JJ., concur.
