State v. Waller, 208 N.C. 351 (1935)

June 26, 1935 · Supreme Court of North Carolina
208 N.C. 351
STATE v. DORTCH WALLER

STATE v. DORTCH WALLER.

(Filed 26 June, 1935.)

Criminal Law La: L dā€”

Upon failure of appellant to file a brief in his appeal from conviction of a capital felony, the motion of the Attorney-General to1 dismiss the appeal will be allowed in the absence of error appearing upon the face of the record.

Appeal by defendant from Harris, J., at February Term, 1935, of GRANVILLE.

Criminal prosecution, tried upon indictment charging the defendants Dortch Waller and Willie Fields with the murder of one John Harris. There was a motion for severance, which was allowed, and the case was continued as to Willie Fields. S. v. Donnell, 202 N. 0., 782, 164 S. E., 352.

Verdict: Guilty of murder in the first degree.

Judgment: Death by electrocution.

Defendant gave notice of appeal.

Attorney-General Seawell and Assistant Attorney-General Aiken for the State.

Stacy, O. J.

At the February Term, 1935, Granville Superior Court, the defendant herein, Dortch Waller, was tried upon indictment charging him with the murder of one John Harris, which resulted in a conviction of murder in the first degree and sentence of death. From the judgment thus entered the defendant gave notice of appeal to the Supreme Court. The case on appeal was prepared and settled by agreement of counsel. It contains only two exceptions, and no assignments of error. Counsel evidently concluded, upon reflection and after sifting the exceptions taken on the trial, that no error had been committed in the case. The motions to nonsuit were properly overruled. At the *352close of all the evidence tbe defendant tendered a plea of guilty of murder in the second degree, which was rejected by the State.

No brief has been filed by either side, and the Attorney-General has lodged a motion to dismiss the appeal. S. v. Hooker, 207 N. C., 648. As no error appears on the face of the record, the motion must be allowed. S. v. Etheridge, 207 N. C., 801; S. v. Watson, ante, 70.

Appeal dismissed.