State v. Butner

• Decision Date: 25 April 1923
• Docket Number: 349.
• Parties: STATE v. BUTNER.
• Court: North Carolina Supreme Court

117 S.E. 163

185 N.C. 731

STATE v. BUTNER.

No. 349.

Supreme Court of North Carolina

April 25, 1923

Appeal from Superior Court, Surry County; Calvert, Judge.

Tom Butner was convicted of housebreaking and larceny, and he appealed. The appeal was dismissed, and the defendant moves to reinstate appeal. Motion denied.

An appellant who has failed to file the case on appeal within the required time on application for certiorari must allege error and assign meritorious grounds for the appeal besides filing appeal bond, printing the records and briefs (except in proper cases), and otherwise complying with the ordinary requirements of the court and statutes.

E. C Bivens, of Mt. Airy, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

CLARK C.J.

This case was tried at the October term, 1922, of Surry. The defendant was allowed by the judge 60 days in which to serve case on appeal and the state 30 days thereafter to serve counter case. The case on appeal was not served within the 60 days, and there was no application for certiorari filed until March 27, 1923, which on April 3, 1923, was denied, and the motion of the Attorney General to dismiss the appeal was allowed.

This was a motion to reinstate filed on April 17, 1923, and is based upon the same ground as the motion for certiorari, to wit, that the official stenographer was "so busy that she could not furnish copy for the appellant of the evidence until after the 60 days had expired." The motion to reinstate is based upon the same ground.

It is true the statute permits the judge now to extend the time for settling cases on appeal. The court deprecates the unusual length of time allowed in some instances. The result is simply to delay the administration of justice, and besides makes it more difficult to settle cases on appeal by the lapse of time. It is true that, where there is a stenographer, the notes of the evidence can be reduced to writing, but we have often held that these notes are not controlling, and that it is the judge's function and his responsibility, of which he cannot be dispossessed nor voluntarily abdicate, to determine what was the evidence. Though the stenographer's notes may be very useful to the judge, they are not controlling. If they were, it would substitute the stenographer for the judge in one of his most essential functions. Cressler v. Asheville, 138 N.C 485, 51 S.E. 53; State v. Shemwell, 180 N.C. 718 104 S.E. 885, and other cases in which we held:

"Now, as always, these matters must be settled by the judge. When counsel disagree, the stenographer's notes will be valuable aid to refresh the judge's memory but the stenographer does not displace the judge in any of his functions."

The motion for the certiorari in this case was therefore denied, and so must this motion to reinstate on the same ground that--

The "court stenographer was so crowded with work that it was impossible for her to get up the abstract of evidence within the time allowed the defendant for his service of the case, and the solicitor agreed to waive the time." In the capital case of State v. Harris, 181 N.C. 613, 107 S.E. 466, there was similar ground presented and disallowed.

If, in addition to the many grounds on which delay is asked in bringing up appeals to this court, or negligence in so doing is sought to be condoned, there were to be added this excuse that the stenographer cannot get up the evidence, it will entirely destroy all reasonable diligence in the dispatch of appeals, both civil and criminal.

There is certainly no lack of competent stenographers in this state. Indeed, until very recently, justice was dispensed without seeking their aid at all, but, if an alleged scarcity or the overwhelming popularity of any stenographer is such that the amount of business devolving upon any one stenographer can excuse delay, there will be an end to all promptness in judicial proceedings. If a stenographer is so much in demand that he must go from court to court and from case to case before finishing the work in hand, it cannot be taken as an excuse. It is his duty to do the work with which he is intrusted before taking employment in another case or at another court. This might as well be understood once and for all.

There are enough stenographers "to go around," and, until one is able to discharge promptly the duties he has taken, it is the duty of litigants and defendants to get other...