State v. Harris, 199 N.C. 377 (1930)

Sept. 10, 1930 · Supreme Court of North Carolina

199 N.C. 377

STATE v. PETER HARRIS and NED HARRIS.

(Filed 10 September, 1930.)

Criminal Daw D a — Where case is not docketed according to Rules of Court appeal will he dismissed.

Where the appellant in a criminal action has failed to have his case docketed in the time required by the Rules of Practice in the Supreme Court, in order to preserve his right to appeal it is required that he file an application for a e&'tiorari, addressed to the sound discretion of the Supreme Court, and show a good and sufficient reason for granting his motion therefor, and where this has not been done the appeal will be dismissed upon motion of the State.

Appeal by defendants from Sinclair, J., at January Term, 1930, of IÍDGECOMBE.

Criminal prosecution tried upon an indictment charging the defendants with the murder of one Tom Cooper.

From a verdict of manslaughter and judgment entered thereon, the defendants appeal, assigning errors.

Motion by State to dismiss appeal.

Attorney-General Brummitt and Assistant Attorney-General Nash for the State.

B. T. Fountain, T. W. Fitts amd George M. Fountain for defendants.

Stacy, C. J.

Tbis action was tried at tbe January Term, 1930, Edgecombe Superior Court, wbicb commenced 20 January and ended five days thereafter. Tbe case on appeal was docketed here 20 August, 1930. There was no application for a writ of certiorari at the next succeeding term of the Supreme Court commencing after the rendition of the judgment in the Superior Court, the term to which the appeal should have been brought. S. v. Farmer, 188 N. C., 243, 124 S. E., 562; Pentuff v. Park, 195 N. C., 609, 143 S. E., 139.

The appeal, therefore, must be dismissed for failure to comply with the rules. S. v. Surety Co., 192 N. C., 52, 133 S. E., 172; Stone v. Ledbetter, 191 N. C., 777, 133 S. E., 162.

It is true that appeals in civil cases from the First, Second, Third and Fourth districts which are tried between the first day of January and the first Monday in February, or between the first day of August and the fourth Monday in August, are not required to be docketed at the immediately succeeding term of this Court, though the rule is otherwise in criminal prosecutions, and even in civil cases if docketed in time for hearing at said first term, the appeal will stand regularly for argument. Pentuff v. Park, supra.

Appeal dismissed.