State v. Angel
| Decision Date | 14 December 1927 |
| Docket Number | (No. 522.) |
| Citation | 140 S.E. 727 |
| Court | North Carolina Supreme Court |
| Parties | STATE. v. ANGEL. |
Sam Angel was convicted of receiving a number of turkeys knowing them to have been theretofore feloniously stolen or taken, in violation of C. S. § 4250. On defendant's motions for certiorari and for a new trial, and on motion by the State to docket and dismiss. Motion by State allowed, and defendant's motions denied.
Motions by the defendant (1) for certiorari to have case brought up from Yancey county and heard on appeal; and (2) for a new trial for that the trial judge, Hon. Raymond G. Parker, died before settling the case on appeal, and counsel are not able to agree on a statement of the case. Motion by the State to docket and dismiss.
D. G. Brummitt, Atty. Gen., and Prank Nash, Asst. Atty. Gen., for the State.
Chas. Hutchins and R. W. Wilson, both of Burnsville, for defendant.
The defendant was convicted at the March term, 1927, Yancey superior court, of receiving a number of turkeys, the property of one Martha King, knowing them to have been theretofore feloniously stolen or taken, in violation of C. S. § 4250. From the judgment pronounced on the verdict, the defendant gave notice of appeal to the Supreme Court. By consent, and with the court's approval, the defendant was allowed 60 days within which to prepare and serve statement of case on appeal, and the solicitor was allowed 60 days thereafter to file exceptions or counter statement of case.
The defendant served his statement of case on appeal before the expiration of the time agreed upon, and the solicitor, through counsel employed to assist him, served exceptions thereto, June 25, 1927, well within the time allowed the state. There is a conflict between counsel for the defendant and counsel appearing with the solicitor as to whether the defendant's statement of case on appeal was returned with the exceptions filed by the state. Defendant says that it was not and for this reason he was unable to send the case and exceptions to the judge, with request that he fix a time and place for settling the case before him. C. S. § 644. The trial judge died on or about August 29, 1927.
It is provided by C. S. § 643, that if the appellant's case is "not returned with objections within the time prescribed [ten days], it shall be deemed approved, " and when filed in the clerk's office, it becomes part of the record. Such statement apparently has never been filed in the clerk's office. So, taking the defendant's own view of the matter, it would seem that he is not entitled to either motion. If his statement of the case on appeal...
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Pruitt v. Wood
......Dudley, 193 N. C. 354, 137 S. E. 149; (3) by consent of litigants or counsel, State v. Parmer, 188 N. C. 243, 124 S. E. 562. The court has not only found it necessary to adopt them, but equally necessary to enforce them and to ...Taylor, 194 N. C. 738, 140 S. E. 728 (dismissed for failure to prosecute appeal); State v. Angel, 194 N. C. 715, 140 S. E. 727 (certiorari denied for want of meritorious showing—failure to show probable error—and appeal dismissed for ......
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State v. Moore
...for "certiorari in the nature of a writ of error, " we proceed to a consideration of the application itself. In State v. Angel, 194 N.C. 715, 140 S.E. 727, 728, it is said: "Certiorari is a discretionary writ, to be issued only for good or sufficient cause shown, and the party seeking it is......
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State v. McCoy
...affidavit showing no neglect on [the belated appellant's] part, he should have moved for a certiorari."). See also State v. Angel, 194 N.C. 715, 716, 140 S.E. 727, 728 (1927) (holding that a petitioner must show not only merit to his claims, but also excusable neglect in failing to timely N......
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State v. Moore, 75.
......Angel, 194 N.C. . 715, 140 S.E. 727), but such writ is not one to which the moving party is entitled as a matter of right. State v. Farmer, 188 N.C. 243, 124 S.E. 562. The issuance of a writ of certiorari, however, does not perforce change the time already fixed by agreement of the parties, or by ......