State v. Dalton, 185 N.C. 606 (1923)

Feb. 21, 1923 · Supreme Court of North Carolina

185 N.C. 606

STATE v. JERRY DALTON.

(Filed 21 February, 1923.)

Appeal and Error — Docketing — Dismissal — Capital Felony — Escape— Criminal Law — Rules oí Court.

Upon tbe failure of appellant to docket bis appeal in tbe Supreme Court from the conviction of a capital felony, within tbe time prescribed by tbe rule, it will be docketed and dismissed unless a motion is made for a certiorari at tbe next succeeding term, and sufficient cause shown for tbe failure to docket in time; and tbe fact that be bad fled tbe State and remained absent until arrested and brought back entitles him to no special fávor. It would be discretionary with tbe court to affirm tbe judgment or dismiss tbe appeal, or continue the case, if tbe appeal bad been docketed within the time required by tbe rule.

Appeal by defendant from Brysoni J., at April Term, 1920, of MacoN.

Pee. Cueiam.

It appearing from an inspection of tbe record that tbe defendant Jerry Dalton was tried and convicted of murder in tbe first degree at tbe April Term, 1920, of tbe Superior Court of Macon, and from tbe judgment on such conviction appealed to this Court, but did not docket bis appeal until 22 January, 1923, after six terms of this Court after such appeal was taken, on motion of tbe Attorney-General tbe appeal is docketed and dismissed.

The decisions of this Court have been uniform that on failure to docket the appeal in the time prescribed, it will be docketed and dismissed unless a motion is made for certiorari at the next succeeding term and sufficient cause shown for failure to do so.

This whole matter was discussed fully at last term with full citation of authorities in Rose v. Rocky Mount, 184 N. C., 609.

If the a}3pellant bad docketed bis case in time and then escaped pending the appeal, the Court might either affirm judgment or dismiss the appeal or continue the case, in its discretion, and it would make no difference that the appellant was convicted of a capital felony. S. v. Jacobs, 107 N. C., 772, and S. v. Devane, 166 N. C., 281, in which the uniform decisions are cited and approved.

In this case tbe defendant not only shows no excuse for failure to docket, but admits that be bad fled tbe jurisdiction of tbe State and remained absent until arrested and brought back. This certainly puts him in no better situation and entitles him to no special favor from tbe Court whose jurisdiction be evaded.

Appeal dismissed.