State v. Allen, 208 N.C. 672 (1935)

Nov. 1, 1935 · Supreme Court of North Carolina

208 N.C. 672

STATE v. ROLAND EARLE ALLEN and LOWELL MASSIE.

(Filed 1 November, 1935.)

1. Criminal Law L a — Appeal in. this case is dismissed for defendants’ failure to malee out and serve statement of case within time fixed.

Where defendants fail to make out and serve their statement of case on appeal within the time fixed, they lose their right to prosecute the appeal, and the motion of the Attorney-General to docket and dismiss will be allowed, but where defendants have been convicted of a capital felony, this will be done only after an inspection of the record for errors appearing upon its face. Attention is called to the duty of the clerk of the Superior Court relative to notifying the Attorney-General of appeals in criminal cases. C. S., 4654.

2. Criminal Law L d — Appellant must docket appeal at first term of Supreme Court after rendition of judgment or apply for certiorari.

An appeal must be brought to the first term of the Supreme Court beginning after the rendition of the judgment, and same docketed fourteen days before entering the call of the district to which it belongs, and when this has not been done, and no application for certiorari made, the appeal will be dismissed.

MotioN by State to docket and dismiss appeal.

Attorney-General Seawell a/nd Assistant Attorney-General Ailcen for the State.

Stacy, 0. J.

At the September Term, 1934, Eowan Superior Court, the defendants herein, Eoland Earle Allen and Lowell Massie, were tried upon indictment charging them with the murder of one D. Will Eeeves, which resulted in a conviction of murder in the first degree and sentence of death as to both defendants. From the judgment thus entered, the defendants gave notice of appeal to the Supreme Court, and by consent were allowed sixty days within which to make out and serve statement of case on appeal. The clerk certifies that nothing has been done towards perfecting the appeal; that the time for serving statement of case has expired, and that no extension of time for filing same has been recorded in his office. S. v. Williams, ante, 352; S. v. Brown, 206 N. C., 747, 175 S. E. 116.

The prisoners, having failed to make out and serve statement of case on appeal within the time fixed, have lost their right to prosecute the appeal, and the motion of the Attorney-General to docket and dismiss must be allowed. S. v. Williams, supra; S. v. Johnson, 205 N. C., 610, 172 S. E., 219. It is customary, however, in capital cases, where the life of the prisoner is involved, to examine the record to see that no error appears upon its face. S. v. Williams, supra; S. v. Goldston, 201 N. C., 89, 158 S. E., 926. This we have done in the instant case without discovering any error on the face of the record. S. v. Williams, supra; S. v. Hamlet, 206 N. C., 568, 174 S. E., 451.

There is still another reason why the motion of the Attorney-General must be allowed. The case was tried and judgment rendered before the commencement of the Spring Term, 1935, of this Court. Hence, the appeal was due to be brought to such term, the next succeeding term, and docketed here fourteen days before entering upon the call of the district to which the case belongs. Failing in this, application for certiorari at the Spring Term was required to preserve the right of appeal. S. v. Harris, 199 N. C., 377, 154 S. E., 628; Pruitt v. Wood, ibid., 788, 156 S. E., 126. The case was neither docketed in time nor was application for certiorari made at the Spring Term. This was fatal to the appeal. S. v. Rector, 203 N. C., 9, 164 S. E., 339; S. v. Farmer, 188 N. C., 243, 124 S. E., 562.

Attention is again directed to what was said in S. v. Etheridge, 207 N. C., 801, 178 S. E., 556, and S. v. Watson, ante, 70, relative to notifying the Attorney-General of appeals in criminal cases as required by C. S., 4654.

Appeal dismissed.