Opinion
(Filed 23 April, 1930.)
Criminal Law L a — Appeal in capital cases will be dismissed for failure to prosecute according to Rules of Court, no errors appearing of record.
Whether the Supreme Court acquires jurisdiction of an appeal in forma pauperis from a conviction of a capital felony when the affidavit for leave to appeal fails to state, as required by C. S., 4651, that the "application is in good faith," quaere? and where the appeal has not been prosecuted as required by the Rules of Court the appeal will be dismissed upon motion of the Attorney-General after an examination of the record for errors appearing upon its face.
MOTION by State to dismiss appeal.
Attorney-General Brummitt and Assistant Attorney-General Nash for the State.
At the October Criminal Term, 1929, of Union Superior Court, the defendant herein, James Brumfield, was tried upon an indictment charging him with a capital felony, to wit, burglary in the first degree, which resulted in a conviction and sentence of death. From the verdict thus rendered and judgment entered thereon, the defendant gave notice of appeal to the Supreme Court, but this has not been prosecuted as required by the rules. Indeed, as the attempted appeal is in forma pauperis, and the affidavit for leave to appeal without giving security for costs fails to state, as required by C. S., 4651, that "the application is in good faith," it may be doubted as to whether we have any jurisdiction to hear the matter. S. v. Martin, 172 N.C. 977, 90 S.E. 502. Nevertheless, as the life of the prisoner is involved, we have examined the case and find no error on the face of the record.
The motion of the State must be allowed.
Appeal dismissed.