State v. Robinson, 214 N.C. 365 (1938)

Nov. 2, 1938 · Supreme Court of North Carolina

214 N.C. 365

STATE v. ED ROBINSON.

(Filed 2 November, 1938.)

1. Criminal Law § 71 — Affidavit in pauper appeal must be made by defendant.

Tie statute, O. S., 4651, requires tbat in appeals in forma pauperis tbe statutory affidavit must be made by defendant and not by bis attorneys, and tbe requirements of tbe statute are mandatory and not directory, and must be complied with in order to confer jurisdiction on tbe Supreme Court.

2. Criminal Law § 79—

Tbe failure of defendant to file briefs works an abandonment of tbe assignments of error, except those appearing on tbe face of the record, which are cognizable ex mero motu.

3. Criminal Law § 80 — Appeal dismissed for failure to file affidavit as required by statute and for failure to file briefs.

Tbis appeal in forma paiiperis is dismissed on motion of tbe Attorney-General for failure of defendant to file the affidavit as required by statute and for failure to file briefs, but as defendant was convicted of a capital felony, the motion is allowed only after an inspection of tbe record and case on appeal fails to disclose error.

Appeal by defendant from Warliclc, J., at May Term, 1938, of Iredell.

Motion by State to dismiss appeal of defendant.

Attorney-General McMullan and Assistant Attorney-General Bruton for the State.

No counsel contra.

Per Curiam.

The defendant was tried upon a bill of indictment charging him with the crime of rape. There was verdict of guilty of rape as charged in the bill of indictment, and judgment of death by asphyxiation. Defendant gave notice of appeal to the Supreme Court.

Thereupon the court below made an order permitting the defendant to appeal in forma pauperis. It appears, however, that the affidavit upon which this order was made is that of the attorneys for the defendant, and not of the defendant, as required by statute. C. S., 4651. The requirements of that statute are mandatory and not directory and unless there is a compliance therewith this Court does not acquire jurisdiction. S. v. Stafford, 203 N. C., 601, 166 S. E., 734; S. v. Holland, 211 N. C., 284, 189 S. E., 761, and cases cited.

The record and case on appeal were duly docketed in this Court, but defendant has not filed brief, which, if this Court had acquired jurisdiction of the appeal, would work an abandonment of the assignments of error, S. v. Hooker, 207 N. C., 648, 178 S. E., 75; S. v. Dingle, 209 N. C., 293, 183 S. E., 376; S. v. Robinson, 212 N. C., 536, 193 S. E., 701; S. v. Hadley, 213 N. C., 427, 196 S. E., 361; S. v. Brice, ante, 34, 197 S. E., 690, except those appearing on the face of the record, which are cognizable ex mero motu. S. v. Edney, 202 N. C., 706, 164 S. E., 23.

The Attorney-General moves to dismiss the appeal for that defendant failed (1) to file affidavit as required in appeals in forma pauperis, C. S., 4651, and (2) to comply with Buie 27 of this Court as to filing briefs. This motion is allowed on the authorities hereinabove cited.

However, as is customary in capital cases, we have examined the record and case on appeal to see if any error appears. The record is regular. The exceptions presented are without merit. The case on appeal reveals competent evidence sufficient to sustain the verdict. The charge of the court below clearly, fully and fairly presented the case to the jury. We find no error.

Judgment affirmed and appeal dismissed.