Opinion
(Filed 13 April, 1938.)
1. Criminal Law § 79 —
The failure of defendant to file briefs works an abandonment of the assignments of error except those appearing on the face of the record, which are cognizable ex mero motu.
2. Criminal Law § 80 —
Where defendant fails to file briefs, the motion of the Attorney-General to dismiss the appeal will be allowed. Rule of Practice in the Supreme Court No. 28, but in capital cases this will be done only after an inspection of the record fails to disclose error.
APPEAL by defendant from Frizzelle, J., at February Term, 1938, of SAMPSON.
Attorney-General Seawell for the State.
No counsel contra.
Motion by State to dismiss appeal of defendant.
The defendant was tried upon a bill of indictment charging him with the crime of rape. There was verdict of guilty of rape as charged in the bill, and judgment of death by asphyxiation. Defendant gave notice of appeal to the Supreme Court and was permitted to appeal in forma pauperis. The record and case on appeal were duly docketed in this Court, but defendant has filed no brief, which works an abandonment of the assignments of error ( S. v. Hooker, 207 N.C. 648, 178 S.E. 75; S. v. Dingle, 209 N.C. 293, 183 S.E. 376; S. v. Robinson, 212 N.C. 536, 193 S.E. 701), except those appearing on the face of the record, which are cognizable ex mero motu. S. v. Edney, 202 N.C. 706, 164 S.E. 23.
The Attorney-General moves to dismiss the appeal for failure to comply with Rule 28 of this Court as to filing briefs. This motion is allowed. S. v. Kinyon, 210 N.C. 294, 186 S.E. 368; S. v. Robinson, supra.
However, as is customary in capital cases, we have examined the record and case on appeal to see if any error appears. The only exceptions presented are without merit. The case on appeal reveals evidence competent and sufficient to sustain the verdict. The charge of the court below fully and fairly presented the case to the jury. To it no exception is taken.
We find no error.
Judgment affirmed and appeal dismissed.