State v. Lewis, 230 N.C. 539 (1949)

June 2, 1949 · Supreme Court of North Carolina

230 N.C. 539

STATE v. JAMES EDWARD LEWIS.

(Filed 2 June, 1949.)

Criminal Law § 80b (4) —

Where defendant does not file case on appeal within the time allowed, the appeal will be dismissed upon motion of the Attorney-General, but when defendant has been convicted of a capital felony this will be done only after an examination of the record proper fails to disclose error or irregularity.

Appeal by defendant from Grady, Emergency Judge, Second September Term, 1948, Robeson.

Motion by State to docket and dismiss defendant’s appeal.

Indictment: murder.

Verdict: guilty of murder in the first degree.

Sentence: death by asphyxiation.

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

No counsel for defendant.

Per Curiam.

Although the time for serving the same has long since expired, the Clerk of the Superior Court of Robeson County certifies that no case on appeal has been filed in his office and that counsel for defendant have notified him that the appeal herein will not be perfected. ■ The Attorney-General moves to docket and dismiss the appeal under Rule 17.

Before ruling on a motion to docket and dismiss in a case where the death penalty was imposed, it is our custom to examine the record proper to ascertain whether the proceeding below was in all respects regular. Ve find no error or irregularity therein. Therefore, upon the facts now made to appear, the motion to docket and dismiss the appeal must be allowed. It is so ordered.

Judgment affirmed.

Appeal dismissed.