Opinion
(Filed 3 November, 1943.)
APPEAL by defendant from Warlick, J., at August Term, 1943, of CABARRUS.
Attorney-General McMullan and Assistant Attorneys-General Patton and Rhodes for the State.
A. A. Tarlton and J. F. Sossomon for defendant.
Motion by State to dismiss appeal.
At the October Term, 1942, Cabarrus Superior Court, the defendant was tried upon indictments charging him with two homicides, which resulted in convictions and sentences, one of them death. The defendant appealed. The judgments were upheld in an opinion filed 7 April, 1943, reported ante, 31.
Thereafter, at the August Term, Cabarrus Superior Court, the next succeeding term following affirmance of judgments on appeal, the defendant lodged a motion for a new trial on the ground that one of the jurors, prior to the trial, had been heard to say "the defendant should have the death penalty." The motion was heard and denied, from which ruling the defendant again gave notice of appeal.
The motion to dismiss the appeal must be allowed on authority of S. v. Davis, 203 N.C. 327, 166 S.E. 297, and S. v. Lea, ibid., 316, 166 S.E. 292.
Judgment affirmed;
Appeal dismissed.