Opinion
(Filed 10 October, 1945.)
Criminal Law § 80 —
Where the record on appeal in a capital case only purports to be a transcript of the record proper in the court below, without case on appeal or assignments of error, and prisoner's counsel, in argument and brief, states that appeal as certified fails to show arraignment or plea by his client, and on certiorari and return the minutes of the trial court show arraignment and plea of not guilty, and the record in other respects appearing regular and proper, in the absence of error on the face of the record as corrected, we find no error.
APPEAL by defendant from Thompson, J., at March-April Term, 1945, of LEE.
Attorney-General McMullan and Assistant Attorneys-General Rhodes, Moody and Tucker for the State.
C. J. Gates and R. O. Everett for defendant, appellant.
Criminal prosecution upon indictment charging defendant with the crime of rape of a named female person.
Verdict: Guilty of rape as charged in the bill of indictment.
Judgment: Death by asphyxiation in specific manner provided by law.
Defendant appeals therefrom to Supreme Court and assigns error.
The record on this appeal only purports to be a transcript of the record proper of the proceedings in the case in Superior Court. It contains no case on appeal and no assignment of error. But in brief filed and in oral argument in this Court in his behalf, defendant makes the point that the record on this appeal as originally certified fails to show that defendant was arraigned, or was given an opportunity to plead in Superior Court, which are essential in judicial procedure in capital cases, citing authorities.
However, upon the call of calendar of cases from the fourth judicial district for argument in this Court, the Attorney-General for the State suggested diminution of the record, and moved for certiorari in accordance with usual practice. The writ was granted, and upon return thereto under date of 29 September, 1945, the Clerk of Superior Court of Lee County certifies "that the minutes of Lee County Superior Court for March-April Term, 1945, show the following on Superior Court Minute Docket #9 at page 251: State v. Burnette Williams #5763. Defendant Burnette Williams brought into open court and duly arraigned and plead not guilty and placed himself for trial on God and his country. Gavin Jackson of local Bar appointed to represent defendant at this trial. Court ordered special venire which was drawn in open court and in presence of defendant," and that "The minutes for this day, March 26th, 1945, in which the above record appears, is signed C. E. Thompson, Judge Presiding."
Therefore, the point made by defendant must fail.
The record in other respects appears to be regular and in accordance with the course and practice in the courts.
Hence, in absence of apparent error upon the face of the record as corrected, we find in judgment below
No error.