
    STATE v. CALEB I. WRAY.
    (Filed 13 April, 1949.)
    1. Criminal Law § 80b (o) —
    Where only one of several indictments consolidated for trial appears in the record, and the record does not make it clear whether the indictment therein set out is the one referred to in the verdict, the appeal will be dismissed on motion of the Attorney-General for incompleteness and defectiveness of the record in material particulars.
    2. Criminal Law § 81b—
    The judgment of the Superior Court is presumed correct and the burden is on appellant to show error.
    3. Criminal Law §§ 73a, 74—
    It is the duty of appellant to see that the record is properly made up and transmitted.
    Appeal of defendant from Phillips, J., November Term, 1948, of ROCKINGHAM.
    Criminal prosecution on charge of (a) violation of prohibition laws, (b) assault with a deadly weapon, and (c) resisting an officer.
    The Attorney-General moved to dismiss for the reasons set forth in the written motion filed.
    
      Attorney-General McMullan and Assistant Attorney-General Rhodes ■ for the State.
    
    
      P. W. Glidewell, Sr., for defendant, appellant.
    
   Per Curiam:.

The defendant appears to have been tried on four bills of indictment which were consolidated for trial. Only one of these appears in the record, which contains four counts respecting violation of the prohibition laws. The record discloses that defendant was convicted in “cases numbers 166, 167 and 168,” “on all three counts,” and the judgment is rendered in 167, which is identified therein as the count of resisting an officer, “that the defendant be confined in the common jail of Rockingham County,” assigned to work on the roads for a term of 18 months”; and that in 168, the count of assault with a deadly weapon, the defendant was sentenced to the county jail of the county and assigned “to work on the public roads under the supervision' of the Public Works Commission for a term of 18 months,” the sentence to begin running at the expiration of the foregoing sentence; adding, “This sentence not to run concurrently, but to begin running at the expiration of the sentence imposed in 167 — to run concurrently and not consecutively,” (sic). And in number 166 the defendant was sentenced to be confined in the county jail to work on .tbe roads for two years, tbe sentence suspended for a period of five years on condition.

Tbe record contains only one indictment, unnumbered, wbicb may or may not have been tbe indictment under wbicb defendant was found guilty.

At any rate, no indictments appear in tbe record relating to tbe resisting of an officer, or to an assault witb a deadly weapon, under wbicb tbe defendant was apparently convicted and sentenced; and it is impossible for tbe Court to determine witb that certainty wbicb tbe law requires whether tbe indictment set out in tbe record is tbe No. 166 referred to in the verdict.

This does not inure to tbe benefit of tbe appellant. S. v. McDraughon, 168 N.C. 131, 83 S.E. 181, thus states tbe rule applicable to tbe present case:

“In cases of this character tbe jurisdiction of this Court is not original, but appellate. . . . Tbe presumption is that tbe judgment Of tbe Superior Court is correct, and tbe burden is on tbe appellant to show errors. As far back as S. v. Butts, 91 N.C. 524, all tbe requisites of tbe transcript were pointed out, and in S. v. Frizzell, 111 N.C. 722, the Court said: ‘It is tbe appellant’s duty to see that tbe record is properly and sufficiently made up and transmitted. Hereafter tbe Court will dismiss tbe appeal or affirm tbe judgment, as tbe case may be, when tbe record is defective in any material particular, in all cases in wbicb tbe Attorney-General . . . sees proper to make such motion, unless sufficient excuse for the apparent laches is shown.’ ”

See also S. v. Golden, 203 N.C. 440, 441, 166 S.E. 311, and cases cited.

The motion of tbe Attorney-General must be allowed.

Appeal dismissed.  