Opinion
(Filed 17 March, 1943.)
Criminal Law § 80 —
When defendant fails to serve his statement of case on appeal within the time allowed, the motion of the Attorney-General to docket and dismiss will be granted, but when the defendant has been convicted of a capital felony this will be done only after inspection of the record fails to disclose error.
Attorney-General McMullan for the State.
The defendant was tried before his Honor, R. D. Dixon, Special Judge, and a jury, at the August Term, 1942, of Northampton Superior Court upon a bill of indictment charging him with the murder of John Arthur Kee, and was convicted of murder in the first degree. Thereupon, he was sentenced to death by asphyxiation, as provided by law; and from this judgment, he gave notice of appeal to the Supreme Court.
The case on appeal was not docketed here within the time prescribed under the Rules of Court, and the defendant has filed no brief.
Thereupon, the Attorney-General moved to dismiss the appeal for failure to docket the same and send up the transcript as required by Rule 17, and for not having filed a brief as required under Rule 28.
We have carefully examined the record, and find therein no error. S. v. Watkins, 101 N.C. 702, 8 S.E. 346. The motion of the Attorney-General is, therefore, allowed.
The judgment of the court below is affirmed and the appeal is dismissed. S. v. Watson, 208 N.C. 70, 179 S.E. 455.
Judgment affirmed. Appeal dismissed.