State v. Daniels
| Decision Date | 02 November 1949 |
| Docket Number | 294 |
| Parties | STATE v. DANIELS et al. |
| Court | North Carolina Supreme Court |
At May term, 1949, of the Superior Court of Pitt County, the defendants were tried and convicted of first degree murder, without recommendation of mercy, and were sentenced to death. Judgment was pronounced on June 6, 1949 on which day the court adjourned. The defendants were allowed 60 days from that date in which to make out and serve case on appeal; and the State was allowed 30 days thereafter to serve counter-case or exceptions.
The defendants did not serve their case within the time allowed but on August 6 left a copy thereof at the office of the Solicitor of the district. No extension or waiver of time to serve the statement of case on appeal other than that contained in the appeal entries was made, and none was requested. The Solicitor, however, served amendments and exceptions to the defendants' statement and caused the same to be served on an attorney for the defendants, making however, the following reservations:
'The undersigned Solicitor of the Fifth Judicial District, not waiving any rights, and specifically reserving and now reasserting exception by the State to the failure of the defendants to serve Statement of Case on Appeal within the time fixed by the Court, and renewing its motion to strike the said Statement of Case on Appeal from the record, objects to the Statement of Case on Appeal as left at the Solicitor's office and offers the following exceptions or amendments thereto.'
The Solicitor filed a written motion to strike out the statement of case on appeal for failure of defendants to make up and serve the same within the time fixed by the court, serving notice of the motion on Herman L. Taylor, attorney for the defendants.
On the hearing defendants' attorney admitted that the statement of case on appeal was left in the Solicitor's office with his secretary on August 6, 1949, and that the attempted service was not within the 60 days fixed by the court. G.S. s 1-282.
At the hearing, October 1, 1949, Judge Williams, finding these facts, allowed the motion and struck out defendants' statement of case on appeal.
The defendants have filed in this Court two petitions for certiorari: One on September 27, 1949, before the order of Judge Williams above recited; the other on October 10, 1949 after that event. Both are of the same import, and they may be considered here as one petition. For convenience, any reference to the 'petition' will be understood as implying both. The petitions are as follows:
'Bennie Daniels and Lloyd Ray Daniels, petitioners, respectfully show unto the court:
'1. That at the March, 1949 Term of the Superior Court of Pitt County, North Carolina, that petitioners were indicted for the crime of first-degree murder.
'2. That at the May 30, 1949 Term of said court petitioners were tried upon said bill of indictment and convicted of the capital crime of first-degree murder without recommendation of mercy.
'3. That from the judgment of death pronounced by His Honor Clawson L. Williams, Judge Presiding, petitioners, with the allowance of the Court appealed in forma pauperis to the Supreme Court of North Carolina.
'4. That the said May 30, 1949 term of the said court, at which petitioners were tried and convicted, was duly convened on the said 30th day of May, 1949, and the judgment of the Court was pronounced on June 6, 1949.
'5. That the defendants were allowed sixty (60) days from the date of the judgment in which to make out and serve case on appeal upon the Solicitor of the Fifth Judicial District, and the Solicitor was allowed thirty (30) days after such service to serve counter-case, or exceptions thereto.
'6. That some forty-five (45) or fifty (50) days elapsed before the court reporter attendant upon the said May 30, 1949 Term of the aforesaid court, at which petitioners were tried and convicted, due to her attendance at and upon other courts, delivered into the hands of the attorneys for petitioners the full and complete record of the proceedings had in said trial.
'7. That the record in the cause covers some four (4) volumes, consisting of some five or six hundred pages.
'8. That counsel for petitioners, with all of the diligent efforts they could bring to bear, being under the pressure of other cases, both before this Court and pending in other inferior courts, as well as being retarted in the effort by the lateness of receipt of the complete record in the cause from the Court Stenographer, as aforementioned, served statement of case on appeal upon the Solicitor on the 6th day of August, 1949; that within thirty (30) days thereafter, the Solicitor filed some 132 exceptions to the case on appeal, in addition to a motion to strike same; that because of the filing of said exceptions and motion, it will be necessary for counsel for defendants and the Solicitor to meet with the Presiding Judge for a ruling on said exceptions and motion; that the aforementioned hearing will carry the settlement in this cause well beyond the date on which, under the rules of this Court, said cause should be docketed.
'9. That cases from the Fifth Judicial District must be docketed in this Court on Tuesday, September 27, 1949.
'10. That the inability to docket said cause within the time prescribed is not due to any lack of diligence or good faith on the part of any of the parties herein involved, but to the reasons previously set out.
'11. That petitioner has caused to be docketed in the office of the Clerk of the Supreme Court of North Carolina contemporaneously with the filing of this petition the record prepared in this case as the same appears on the record in the office of the Clerk of Superior Court of Pitt County, North Carolina, properly certified to by said clerk.
'12. That petitioner has a meritorious appeal, based upon prejudicial errors committed by the Court during the course of his trial, in particular, (1) in denying petitioner's motion challenging the array of petit jurors, timely lodged, upon the ground of systematic discrimination against, and disproportionate representation of, Negroes in the selection of petit juries and jurors in Pitt County, solely and wholly on the basis of race or color, your petitioner being of the Negro race; and (2) in admitting into evidence, over petitioners' objection, confessions which the record shows were extorted through fear and were involuntarily made.
Wherefore, petitioners pray that in order that they may be protected, the Court issue to the Clerk of the Superior Court of Pitt County, North Carolina, a writ of certiorari, to the end that the record and the case on appeal in its entirety be certified to the Supreme Court of North Carolina, and that this cause be docketed and set by the Court for hearing at the end of the call of the calendar for the hearing of appeals from some other Judicial District other than the Fifth Judicial District.'
'Now come Bennie Daniels and Lloyd Ray Daniels, petitioners, through their attorneys, Herman L. Taylor and C. J. Gates, and respectfully show unto the Court:
'1. That on the 27th day of September, 1949, petitioners filed in this Court a petition for a writ of certiorari, praying the Court that they be allowed to docket the appeal which they duly noted at the May 30, 1949 term of the Superior Court of Pitt County, from a judgment and sentence of death for first-degree murder, at a time other than that set for the docketing of appeals from the Fifth Judicial District, upon the ground that as the case on appeal in their cause had not been settled, they could not docket said case as required by the rules of this Court.
'2. That in the said petition for certiorari, petitioners set out in paragraph eight thereof that an additional factor which precluded the timely docketing of their appeal was the filing by the Solicitor of a motion to strike the statement of case on appeal, in addition to numerous exceptions thereto, the hearing on which was set for a time subsequent to the day on which this appeal should have been docketed under rules of this Court.
'3. That on Thursday, September 29, 1949, a hearing was held in the Superior Court of Lenoir County before the Honorable Clawson J. Williams, Judge, who presided over the trial of this cause, on the motion of the Solicitor to strike defendants' statement of case on appeal, for that the same was not served within the time set by the order of the court, entered on the day the appeal was noted, but was one day late, to wit, defendants had sixty days from June 6th in which to prepare and serve case on appeal, and said service was attempted on August 6th.
statement of case on appeal and ordered same to be stricken.
'5. That a detailed affidavit of one of counsel for defendants, attached hereto and prayed to be made a part hereof, sets out that personal service of the statement of case on appeal was not had and could not be had on the Solicitor of the Fifth Judicial District on the day on which time for serving case on appeal expired, for that the said Solicitor was neither in his office nor at home, but was out of town and was not expected back before three days after the deadline for serving case on appeal; that counsel for defendants did not know of the whereabouts of the Solicitor or how to contact him with respect to serving case on appeal.
'6. That defendants failure to perfect their appeal, as set out in the affidavit of counsel, was not and is not due to any laches on the part of them or their counsel.
statement of case on...
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