The questions presented in this appeal are settled by the decision in Bell v. Nivens, 225 N.C. 35, 33 S.E. 2d 66.
Certiorari, disallowed.
Motion to dismiss, denied.
Motion to affirm, granted.
State v. Moore, 240 N.C. 792 (1954)
Oct. 20, 1954
·
Supreme Court of North Carolina
240 N.C. 792
STATE v. ALONZO MOORE.
(Filed 20 October, 1954.)
Criminal Law § 73a—
The dropping of the appeal papers, suspended by a string, through the transom of the solicitor’s office in such way as to cause them to be pushed behind the door and out of sight when the door was opened, so that the papers were not seen until after time for service of case on appeal had expired, is not a sufficient service.
DbfeNDANt’s appeal from Williams, J., May-June Term, 1954, Graven.
Tbe defendant was tried at tbe May-June Term, 1954, Superior Court of Craven County, upon a bill charging murder in tbe first degree. However, at tbe .call of tbe case tbe Solicitor for tbe State announced that be would not ask for a verdict of guilty of tbe capital felony, but for a verdict of guilty of murder in the second degree. Upon tbe trial tbe defendant was convicted of murder in tbe second degree and from judgment imposed gave notice of appeal to tbe Supreme Court. Tbe defendant was given 15 days in which to file and serve ease on appeal, and tbe solicitor 10 days thereafter to serve countercase or file exceptions. Tbe time for service of tbe case expired on Saturday, 19 June. On that day tbe defendant’s counsel attempted to serve tbe case by going to tbe office of tbe solicitor at 11:30 at night in company with a deputy sheriff. Tbe solicitor’s office was closed and tbe door locked. Tbe attorney and tbe deputy sheriff pried open tbe transom above tbe solicitor’s' office door, tied tbe appeal papers to tbe end of a string, pushed them through tbe transom, to which tbe other end of tbe string was fastened, in such a way as caused tbe papers and tbe string to be pushed behind the door and out of sight upon its being opened. Tbe solicitor did not discover tbe papers until 3 July. Defendant’s counsel bad tbe deputy sheriff to mark tbe *793papers “return of ease on appeal as served” and immediately thereafter filed the papers as the ease on appeal in this Court. Before the papers constituting defendant’s case on appeal were discovered, the solicitor’s time to file exceptions had expired. On failure of the solicitor and defense counsel to agree on exceptions, the solicitor served notice on defense counsel of record to appear before Judge Williams, before whom a motion was made to “strike out the defendant appellant’s statement of case on appeal and dismiss the appeal.”
After hearing affidavits and argument, Judge Williams, on 9 August, entered an order: “And the court finding and concluding that the mode of service attempted to be made pursuant to these findings of fact was and is not legal service of the statement of case on appeal, and in fact no service as contemplated by the statute, doth consider, order and adjudge that the return of the deputy sheriff upon the said statement of case be stricken out, that the statement of case on appeal by defendant has not been legally served upon the Solicitor fur the State, and that said statement of case on appeal be stricken from the record in this case and dismissed.”
To this order and the findings of fact therein, defendant objected, excepted and appealed to the Supreme Court.
' The Attorney-General filed a motion to dismiss and to affirm judgment of the Superior Court. Defendant filed a petition for certiorari, and the Attorney-General filed an answer thereto.
Attorney-General McMullan and Assistant Attorney-General Bruton for the State.
Oliarles L. Ahernethy, Jr., for defendant, appellant.