Opinion
(Filed 27 March, 1940.)
1. Criminal Law § 80 —
Where defendant, convicted of a capital felony, fails to file his case on appeal within the time allowed, the motion of the Attorney-General to docket and dismiss will be allowed when an examination of the record proper fails to disclose error. Rule of Practice in the Supreme Court, No. 17.
2. Criminal Law § 69 —
Defendant's petition for certiorari denied for want of merit.
APPEAL by defendant from Armstrong, J., at January Term, 1940, of McDOWELL. Judgment affirmed. Appeal dismissed.
Attorney-General McMullan for the State, appellee.
D. F. Giles for defendant, appellant.
Lee Flynn was tried at January Term, 1940, of McDowell Superior Court, on an indictment charging him with the murder of one Mae Flynn, was convicted of murder in the first degree, and judgment thereupon was entered that he suffer death by asphyxiation, as provided by law. From this judgment the defendant gave notice of appeal to the Supreme Court and was allowed the statutory time to make up and serve his case on appeal; but, as appears from the record, the appeal was not perfected.
The Attorney-General, as his duty requires, filed a motion in this Court to docket and dismiss the appeal under Rule 17 for the stated cause, and filed therewith a transcript of the case and certificate of the clerk of the Superior Court of McDowell County, setting forth the fact that no case on appeal has been filed in his office, and that the time allowed by the Court for perfecting the appeal has expired, and the same has not been perfected. S. v. Stovall, 214 N.C. 695, 200 S.E. 426; S. v. Watson, 208 N.C. 70, 179 S.E. 455. The defendant's petition for certiorari is denied for want of merit. The motion to dismiss the appeal must be allowed; but, as it is required to do by law in capital cases, this Court has diligently examined the record before it and, upon said record, finds no error.
The appeal is, therefore, dismissed. S. v. Day, 215 N.C. 566, 2 S.E.2d 569; S. v. Young, 216 N.C. 626.
Judgment affirmed. Appeal dismissed.