State v. Goldston, 201 N.C. 89 (1931)

June 15, 1931 · Supreme Court of North Carolina
201 N.C. 89


(Filed 15 June, 1931.)

Criminal Law L a — Appeal in capital case not prosecuted according to rules will be dismissed, no error appealing on record.

Where in a capital case the defendant’s appeal in forma, pauperis is not prosecuted according to the Rules.of Oourt, and his motion for cer-tiorari is not resisted, but return thereto is not made for about four months, when, as the only possible return, the clerk of the Superior Court sends up defendant’s statement of case on appeal, which had not been served on the solicitor because of the expiration of time therefor: Held,, although the statement of case on appeal is subject to the plea of “nul tiel record,” the Supreme Court will examine it, and upon the absence of reversible error appearing therein or on the face of the' record proper, the judgment will be affirmed and the appeal dismissed.

Appeal by defendant from Sinclair, J., at January Term, 1931, of CHATHAM.

Motion by tbe State to affirm judgment and dismiss appeal.

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

R. F. Paschal for defendant.

Stacy, C. J.

At tbe January Term, 1931, Cbatbam Superior Court, tbe defendant herein, Ben Goldston, was tried upon an indictment charging him with tbe murder of one Jobn Headen, .which resulted in a conviction and sentence of death. Tbe prisoner gave notice of appeal to tbe Supreme Court, but tbis has not been prosecuted as required by tbe rules, albeit be was allowed to appeal in forma pauperis, and was given sixty days from 17 January within which to make out and serve statement of case on appeal, and tbe solicitor was allowed thirty days thereafter to prepare and file exceptions or countercase.

*90Application for certiorari was filed with the clerk of the Supreme Court 19 February, which was not resisted by the Attorney-General. Nothing was done in behalf of the prisoner, however, until 5 June, when his statement of case on appeal, without being served on the solicitor, as the time had expired for this (S. v. Humphrey, 186 N. C., 533, 120 S. E., 85), was filed in the oifice of the clerk of the Superior Court of Chatham County, and forwarded by him to the clerk of the Supreme Court as the only return he could make to the writ of certiorari. In the meantime, 19 May, the Attorney-General had lodged a motion to dismiss the appeal.

Notwithstanding the prisoner’s statement of case on appeal is subject to a plea of "nul tiel record,” we have examined it and find no reversible error appearing therein or on the face of the record proper. S. v. Massey, 199 N. C., 601.

Judgment affirmed. Appeal dismissed.