State v. Presnell, 226 N.C. 160 (1946)

Feb. 27, 1946 · Supreme Court of North Carolina

226 N.C. 160

STATE v. R. S. PRESNELL.

(Filed 27 February, 1946.)

Criminal Law § 75—

When a case is not docketed within the time prescribed, Rule 5, and no application for writ of certiorari is made, the appeal will be dismissed, the Rules of Practice in the Supreme Court being mandatory and not directory.

Appeal by defendant from Warlich, J., at August Term, 1945, of BUNCOMBE.

The defendant, a citizen and resident of Caldwell County, was indicted in Buncombe County for selling butter in said county, which the warrant charged weighed less than represented, in violation of G. S., 81-17. The defendant interposed a plea in abatement on tbe ground tbat if tbe statute bad been violated tbe offense occurred in Caldwell and not in Buncombe County. Tbe plea was denied. Defendant appeals, assigning error.

Attorney-General McMullan and Assistant Attorneys-General Rhodes, Moody, and Tucker for the State.

W. II. Strickland for defendant.

Per Cueiam.

Tbis appeal was due to be beard at tbe call of tbe Nineteenth District, on 4 September, 1945. Rule. 5 of tbe Rules of Practice in tbe Supreme Court, 221 N. C., 546. Counsel cannot waive tbis rule. Tbe rules of tbis Court are mandatory, and not directory. S. v. Moore, 210 N. C., 459, 187 S. E., 586.

Tbe rules of practice governing tbe time for docketing appeals in tbe Supreme Court, or for applying for a writ of certiorari, where tbe case on appeal, for some cogent reason cannot be docketed within tbe time prescribed by tbe rules, has been uniformly enforced since tbe decision in S. v. Farmer, 188 N. C., 243, 124 S. E., 562. See also Pruitt v. Wood, 199 N. C., 788, 156 S. E., 126.

Appeal dismissed.