196 S.E.2d 592 | N.C. Ct. App. | 1973
STATE of North Carolina
v.
Thomas Wellon LASSITER.
Court of Appeals of North Carolina.
*594 Atty. Gen. Robert Morgan, by Asst. Atty. Gen. Rafford E. Jones, for the State.
Wallace C. Harrelson, Public Defender, Greensboro, for defendant appellant.
PARKER, Judge.
The judgments appealed from were dated 3 November 1972. By order dated 5 January 1973 the trial judge, upon a finding of good cause shown, extended the time for docketing the record on appeal until 10 March 1973. This order, which expressly referred to the judgments in both the robbery and the assault cases, was entered within ninety days after the date of the judgments appealed from as authorized by Rule 5 of the Rules of Practice of this Court. However, the record on appeal was not docketed in this Court within the extended time allowed by the trial judge's order of 5 January 1973. Instead, on 9 March 1973 the trial judge signed a second order which purported further to extend the time for docketing the record on appeal until 30 March 1973. This order made reference only to the sentence imposed in the robbery case, no reference being made to the judgment in the assault case. The record on appeal purporting to present an appeal from the judgments in both cases was finally docketed in this Court on 30 March 1973.
Within ninety days after the date of a judgment appealed from, but not thereafter, the trial tribunal may for good cause shown extend the time for docketing the record on appeal not exceeding sixty days. Rule 5. When the second order extending time to docket was signed in this case on 9 March 1973, the ninety-day period had already expired and the trial tribunal no longer had authority to enter a valid order further extending the time. Lambert v. Patterson, 17 N.C.App. 148, 193 S.E.2d 380. For failure to comply with the Rules of Practice in this Court, this appeal is subject to dismissal. Rules 5 and 48. Nevertheless, in this case we have elected to treat defendant's appeal as a petition for certiorari, to allow the petition, and to consider fully the merits of all questions sought to be raised.
Defendant's first assignment of error, addressed to denial of his motions for nonsuit, is without merit. There was ample evidence to require submission of both cases to the jury. Indeed, it would be difficult to imagine more compelling evidence to show defendant's guilt of all elements of each of the offenses for which he was tried.
Defendant's second assignment of error, that the trial judge failed to define adequately the words "reasonable doubt" in the charge to the jury, is also without merit. The definition as given in the charge was in the form approved by decisions of our Supreme Court. Moreover, in the absence of a request, the court is not obligated to define reasonable doubt. State v. Foster, 8 N.C.App. 67, 173 S.E.2d 577. No such request was made.
On cross-examination, defendant testified he had been convicted of an assault *595 upon his aunt, of breaking and entering, and of forgery. The court, in summing-up defendant's testimony in its charge to the jury, made a brief and accurate reference to this testimony. Defendant's third assignment of error is that the court failed to go further and to instruct the jury that prior convictions of the defendant could be considered only for the limited purpose of impeaching his testimony and for no other purpose. However, no such limiting instruction was requested at any time during the trial.
"It is a well-recognized rule of procedure that when evidence competent for one purpose only and not for another is offered, it is incumbent upon the objecting party to request the court to restrict the consideration of the jury to that aspect of the evidence which is competent." State v. Ray, 212 N.C. 725, 194 S.E. 482; State v. Goodson, 273 N.C. 128, 159 S.E.2d 310.
Defendant's third assignment of error is overruled.
The exceptions which are the basis of appellant's fourth assignment of error are not set out in appellant's brief, nor is any reason or argument stated or authority cited in support of such exceptions. Accordingly, these exceptions are deemed abandoned. Rule 28, Rules of Practice in the Court of Appeals.
Defendant's fifth assignment of error relates only to the assault case. In this assignment the defendant contends that the court committed error in the portion of its charge to the jury in which the court instructed the jury as to what factual findings would be required in order for the jury to find defendant guilty of the lesser offense of assault with a deadly weapon in event they should fail to find him guilty of assault with intent to commit rape. In this connection defendant argues that the court erred in failing to instruct that before the jury could convict defendant of assault with a deadly weapon it was necessary for them to find beyond a reasonable doubt that the victim of the assault, Miss Hann, was put in fear of bodily injury. We find this assignment of error also without merit. While under the evidence in the present record it is inconceivable that Miss Hann was not actually put in fear of bodily injury, under the circumstances disclosed by the evidence in this case it was not essential that the jury so find as a prerequisite to finding defendant guilty of an assault. In this State a criminal assault may be accomplished either by an overt act on the part of the accused evidencing an intentional offer or attempt by force and violence to do injury to the person of another or by a "show of violence" on the part of the accused sufficient to cause a reasonable apprehension of immediate bodily harm on the part of the person assailed which causes him to engage in a course of conduct which he would not otherwise have followed. State v. Roberts, 270 N.C. 655, 155 S.E.2d 303; State v. Hill, 6 N.C. App. 365, 170 S.E.2d 99. Where, as in the present case, the evidence discloses an actual battery, whether the victim is "put in fear" is inapposite. State v. Hill, 266 N.C. 103, 145 S.E.2d 346. As was pointed out by Bobbitt, J. (now C.J.) in that case, the decision in State v. Allen, 245 N.C. 185, 95 S.E.2d 526, which is cited and relied on by the defendant in the present case, relates to an entirely different factual situation.
Defendant's remaining assignments of error are formal and are without merit. Defendant has had a fair trial free from prejudicial error.
No error.
BROCK and MORRIS, JJ., concur.
