Summary
In S. v. Clenny, 133 N.C. 662, it was again held that service on or acceptance by counsel who appeared with solicitor was not valid, even though such counsel had gone before the judge and there agreed upon a case, and the Court remanded the case with direction to the clerk to send immediately to the solicitor a copy of defendant's case on appeal, to the end that the case should be settled, in the manner provided by law.
Summary of this case from State v. StevensOpinion
(Filed 6 October, 1903.)
Case on Appeal — Appeal — Solicitor.
In a criminal case an appellant must tender to the solicitor of the district where the case is tried a statement of the case on appeal for acceptance or rejection, and the acceptance of service of such statement by an attorney appearing for the private prosecutor is insufficient.
INDICTMENT against John Clenny, heard by Peebles, J., and a jury, at Spring Term, 1903, of SAMPSON. From a verdict of guilty and judgment thereon the defendant appealed.
Robert D. Gilmer, Attorney-General, for the State.
F. R. Cooper and J. D. Kerr for defendant.
The statement of the case on appeal is signed by the attorneys for the appellant defendants, and below their signatures there is an entry in these words: "The State failed to file any exception of countercase. It does not appear in the record that the case was ever tendered to the solicitor of the district, and in S. v. Cameron, 121 N.C. 572, it was held that in appeals in criminal actions the statement of the case by the defendants should be submitted to that officer for acceptance or objection. On the call of the case in this Court the attorney of the appellants was permitted to file a paper-writing signed by the clerk of the Superior Court of SAMPSON, in which that officer certified that the had, through inadvertence, failed to send up as a part of the case an entry on the back of the case in these words: "Service accepted and copy waived, 18 March, 1903. Faison Grady."There was also filed in this Court, a statement, signed by Faison Grady, (663) "per Henry A. Grady," to the effect that they appeared with the solicitor for the State; that on the appeal time was agreed upon to make out the case on appeal and to make out a countercase; that within the time agreed upon the defendants filed in the clerk's office their statement of case on appeal, and that Faison Grady accepted service thereof and waived copy; that no countercase was filed, but that Faison Grady, with the solicitor and counsel for the appellants, met before Judge Peebles and went over the defendant's statement of case, and that "we finally decided not to file any counterstatement and to let the case go up on the defendant's statement of the case on appeal."
We are of the opinion that the acceptance of service of the appellant's case on appeal by Faison Grady does not meet the requirements of the law for the purpose intended. The solicitor, as we said in S. v. Cameron, supra, represents the State in criminal prosecutions, and the statement of the case on appeal in such case should be submitted to him for acceptance of objection. . . . An attorney who simply appears for a private prosecutor only aids the State in the trial, but does not represent the State in the sense of one of its sworn officers.
However, out of favor to the appellants, this matter will be remanded to the court below, with instructions to the clerk to send at once to the solicitor of the district a copy of the case on appeal, together with a copy of the statement of Faison Grady, to the end that that officer (the solicitor) may make such entry upon the case on appeal as may embody what took place before his Honor, Judge Peebles, at the time mentioned in the statement of Faison Grady, and that the statement of the solicitor be returned to this Court by the clerk of the Superior Court of SAMPSON.
Of course, we do not mean to intimate that the statement of Faison Grady is not a correct statement of what occurred before Judge (664) Peebles, but we think it safer to lay down the general rule that the signature of the solicitor, a sworn officer, should appear in the make-up of all criminal actions on appeal where he is present at the trial.
Remanded.
Cited: S. v. Marsh, 134 N.C. 193; S. v. Lewis, 145 N.C. 585; S. v. Stevens, 152 N.C. 841.