State v. Munroe

Full title: THE STATE v. DOUGALD MUNROE ET AL

Court: Supreme Court of North Carolina

Date published: Jun 1, 1848

30 N.C. 258 (N.C. 1848)

Opinion

(June Term, 1848.)

Although a certiorari has once been issued upon a suggestion of a defect in the record, and returned, yet the court may, upon a further suggestion, a second time or oftener, direct writs of certiorari to issue, if it sees reason to think the transcript defective.

APPEAL from the Superior Court of Law of CUMBERLAND, at Spring Term, 1848, Bailey, J., presiding.

Attorney-General for the State.

Strange, D. Reid and McRac for defendants.

The indictment in this case was returned to the June Term, 1846, of Cumberland County Court, and the defendants, being convicted, appealed to the Superior Court. Upon a suggestion of a diminution of the record in the latter court, a writ of certiorari was, on motion, ordered to bring up a more perfect transcript. Upon the return of this writ an affidavit was filed by the prosecutor alleging the transcript was still defective, whereupon the court ordered another or an alias writ, as it is (259) termed in the proceedings, to issue. From this order the defendants were allowed to appeal to this Court.

NASH, J.

An appellate court acts upon the transcript of the record from the court granting the appeal, and it is the duty of the court to have before them a true copy, in order that justice may be done between the parties. Upon its being made to appear that the copy is not a true and full copy, the court has the power, and it is its duty, to cause a perfect transcript to be filed. This is not denied, but it is said the power of the court is exhausted by the first order. For this position no reason is or can be assigned. In truth, the same reason exists for a second or third certiorari as the first-the duty of the court to have before them a full copy. The want of truth is the only suggestion that can authorize the court to require another transcript. If that suggestion be made a second time, or oftener, and the court sees reason to think the transcript defective, it may order other writs of certiorari to issue. S. v. Reid, 18 N.C. 382. The court, in this case, did see reason to believe that the second transcript was defective, and, in the legitimate exercise of its power, ordered a second certiorari to issue. In this we see no error.

PER CURIAM. No error.

(260)