State v. Munroe, 30 N.C. 258, 8 Ired. 258 (1848)

June 1848 · Supreme Court of North Carolina

30 N.C. 258, 8 Ired. 258

THE STATE vs. DOUGALD MUNROE & AL.

Although a certiorari has once been issued upon a suggestion of a defect in the record, and returned; yet the Court may, upon a further suggestion, a second time or oftener, direct writs of certiorari to issue, if it sees reason to think the transcript defective.

The case of the Slate v. Reid, 1 Dev. &,Bat. 389, cited and approyed..

.Appeal from the Superior Court of Law of Cumberland County, at the Spring Term, 184S, his Honor Judge Bailey presiding.

The indictment in this casé, was returned to the June term, 1846, of Cumberland County Court, and the defendants, being convicted, appealed to the Superior Court. Upon a suggestion of a diminution of the record, in the latter Court, a writ of certiorari was, on motion, ordered to bring up a more perfect transcript. Upon the return of this writ, an affidavit was filed by the prosecutor, alleging the transcript was still defective ¿ whereupon the Court ordered another or air alias writ, as it is termed in the proceedings, to issue. From this order the defendants were allowed to appeal to this Court.

Attorney General, for the State.

Strange, D. Reid and McRae, for the defendants.

Nash, J.

An appellate Court acts upon the transcript of the record from the Court, granting the appeal, and it is the duty of the Court to have before them a true copy, in order that justice may be done between the parties. Upon its being made to appear that the copy is not a true and full copy, the Court has the power, and it is its duty, to cause a perfect transcript to be filed. This is not denied, but it is said the power of the Court is exhausted by the first order. For this position no reason is or can be assigned. In truth the same reason exists for a second or third certiorari, as the first; the duty of the Court to have before them a full copy. The want of truth is the only suggestion that can authorise the Court to require another transcript. If that suggestion be made a second time, or oftener, and the Court sees reason to think the transcript defective, it may order other writs of certio-rari to issue. State v. Reid, 1st Dev. & Bat. 382. The Court, in this case, did see reason to believe that the second transcript was defective, and, in the legitimate exercise of its power, ordered a second certiorari to issue. In this we see no error.

Per Curiam, Ordered to be certified accordingly.