The defendant was convicted and sentenced at spring term, 1878, of Burke superior court, and prayed an appeal to this court; and on his motion, on the filing of the requisite affidavit of inability to give the usual appeal *578bond, the judge below ordered that he have leave to appeal without giving security for the costs.
The record of the case below, properly so called, is not filed till the present term of the court, and it is unaccompanied with any statement in the nature of a bill of exceptions containing the exceptions taken to the proceedings in the court below; and no error being assigned, the rule is in such case to affirm the judgment, unless upon an examination of the record an error can be seen. State v. Edney, 80 N. C., 360; State v. Gallimore, 7 Ire., 147. We have examined the record and no error appears therein. The defend.ant, although convicted and the initiatory steps taken at spring term, 1878, fails to bring up the record proper until this term of the court, having allowed two terms to elapse 'without looking after the appeal. And now, at this term on affidavit he shows forth that Judge Cloud, before whom the case was tried, and who alone could sign the statement, has gone out of office; and so he has lost his appeal without any laches on his part, and thereupon he moves as his only relief that a new trial be granted him.
We would grant a new trial according to the rule in such cases as is laid down in State v. Murray, 80 N. C., 364, if it appeared that the defendant was guilty of no laches in having his appeal perfected. It is certainly not due diligence in a defendant to pray an appeal and give bond, or be excused from one, and afterwards altogether dismiss the matter and make no effort to have a statement made as required by law. The affidavit filed merely recites that defendant is guilty of no laches, but fails to state any activity or effort to perfect his appeal, and seeing his omission to bring up the record proper, it seems to be a case of appeal for delay, and nothing more.
There is no error. Let this be certified, to the end that ¡the court below proceed to judgment.
Per Curiam. No error.