State v. Parish, 151 N.C. 659 (1909)

Oct. 13, 1909 · Supreme Court of North Carolina
151 N.C. 659
STATE v. CHARLIE PARISH

STATE v. CHARLIE PARISH.

(Filed 13 October, 1909.)

1. Appeal and Error — Forma Pauperis — Criminal Cases — Order Signed by Clerk.

When the order allowing an appeal in forma pmiperis in criminal cases is not signed by the judge as required by Revisal, sec. 3279, but by the clerk, the defect is jurisdictional, without power of the appellate court to allow amendment, and the appeal will be dismissed.

2. Same — Good Cause Shown — Deposit.

But in this case the appellant asked to be allowed to make deposit in lieu of bond, and “good cause being shown,” Revisal, 593, the case was sét for argument at. a later date so that the necessary printing may be done.

Appeal by defendant from W. B. Allen, J., August Term, 1909, of WaTNE.

Attomeyr General for the State.

J. L. Barham for defendant.

Pee Curiam :

The defendant attempted to appeal in forma pauperis. The affidavits were such as required by the statute (Revisal, sec. 3278), but the order allowing the appeal without giving bond was not signed by the judge, as required by Revisal, sec. 3279, but by the clerk. This latter is allowable only as to appeals in civil cases. Revisal, sec. 597.

Unless the requirements of the statute, both as to time and manner, are complied with, the appeal is not in this Court. The defect is jurisdictional, and we have no power to allow amendments, and the appellee has a right to have the appeal dismissed. State v. Bramble, 121 N. C., 603; State v. Galewood, 125 N. C., 695, and numerous cases there cited.

The defendant, however, when the case was called, asked to be considered as ajjpealing under bond, and to make the deposit *660now, in lieu of bond, in this Court, as allowed by Revisal, sec. 593, if “good cause is shown.” We think such cause has been shown, and, the deposit in lieu of bond having been made, the case will be heard. 'As, under the circumstances, the record and brief have not been printed, the cause will be set for hearing at the close of the call of causes from the Eighth District, that the printing may be done, as required in all except pauper appeals.

Motion allowed.