State v. Blue, 221 N.C. 36 (1942)

Feb. 25, 1942 · Supreme Court of North Carolina
221 N.C. 36


(Filed 25 February, 1942.)

Criminal Law § 80—

When defendant flies no appeal bond or order allowing him to appeal in forma pauperis, and fails to make np and serve his statement of case on appeal within the time allowed, the motion of the Attornes'-General to docket and dismiss under Rule 17 will be granted, but when defendant has been convicted of a capital felony this will be done only when no error is apparent on the face of the record.

MotioN by State to docket and dismiss appeal.

Attorney-General McMullan for the State.

No counsel contra.

Winbobne, J.

At the regular December Criminal Term, 1941, of Superior Court of Buncombe County, the defendant, Walter Blue, was tried upon an indictment charging him with rape. There was verdict of guilty of rape as charged in the bill of indictment, upon which judgment of death as required by law was pronounced by the court.

From this judgment defendant gave notice of appeal to the Supreme Court. Appeal bond in the sum of $50 was adjudged sufficient, unless upon the proper showing defendant be permitted to appeal in forma pauperis. Defendant was allowed fifteen days in which to make and to serve statement of case on appeal, and the State was allowed statutory time thereafter to make and serve countercase or file exceptions. The Clerk certifies that no case on appeal has been filed in his office, and that “the time agreed upon by counsel for perfecting the appeal” has expired and the appeal has not been perfected, and says: “I have inquired of counsel for defendant and have been informed by him that he does not intend to perfect the appeal.”

The Attorney-General moves to docket and dismiss the case under Rule 17 of the Rules of Practice in the Supreme Court. 213 N. C., 808.

In the absence of apparent error upon the face of the record, the motion is allowed. S. v. Robinson, 212 N. C., 536, 193 S. E., 701; S. v. Baldwin, 213 N. C., 648, 197 S. E., 142; S. v. Morrow, 220 N. C., 441, 17 S. E. (2d), 507.

Judgment affirmed.

Appeal dismissed.