# State v. Brown

> Court of Appeals of North Carolina · April 7, 1976 · 29 N.C. App. 180

URL: https://www.frixlaw.com/law-library/cases/6733089

## Case

- **Full name:** STATE OF NORTH CAROLINA v. PHILLIP EDWARD BROWN
- **Court:** Court of Appeals of North Carolina
- **Decided:** April 7, 1976
- **Citations:** 29 N.C. App. 180; 223 S.E.2d 572; 1976 N.C. App. LEXIS 2409
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Britt
- **Judges:** Britt, Clark, Parker
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6733089

## Opinion text

BRITT, Judge.
G.S. 15-179 provides as follows:
“When State May Appeal. — Except as provided in G.S. 15A-979(c), an appeal to the appellate division or superior court may be taken by the State in the following cases, and no other. Where judgment has been given for the defendant—
(1) Upon a special verdict.
(2) Upon a demurrer.
(3) Upon a motion to quash.
(4) Upon arrest of judgment.
(5) Upon a motion for a new trial on the ground of newly discovered evidence, but only on questions of law.
(6) Upon declaring a statute unconstitutional.
(7) Upon a motion to bar prosecution based on the prohibition against double jeopardy.”
We hold that an appeal by the State is not authorized in this case. On oral argument in this court the State contended that the appeal is permitted by subsection (4), “upon arrest of judgment.” We reject that contention because no judgment was arrested. The action of the court in allowing defendant’s motion in arrest of judgment had no effect and we treat it as mere surplusage.
While we think the trial court erred in directing a verdict for defendant, we are not authorized to correct that error. The record discloses that during the presentation of evidence defendant did not challenge the qualifications of the breathalyzer operator and did not object to any of his testimony. Defendant’s *182 first complaint with respect to the testimony came after the jury returned its verdict; that was too late. 3 Strong, N. C. Index 2d, Criminal Law § 162; State v. Harrell, 16 N.C. App. 620 , 192 S.E. 2d 645 (1972) ; State v. Davis, 8 N.C. App. 589 , 174 S.E. 2d 865 (1970).
Appeal dismissed.
Judges Parker and Clark concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6733089. Public record. Not legal advice.