State v. Cannon

• Decision Date: 16 April 1947
• Docket Number: 435
• Citation: 42 S.E.2d 343,227 N.C. 336
• Parties: STATE v. CANNON.
• Court: North Carolina Supreme Court

42 S.E.2d 343

227 N.C. 336

STATE v. CANNON.

No. 435

Supreme Court of North Carolina

April 16, 1947

Motion by defendant for new trial for want of statement of case on appeal and inability to secure same.

At the September Term, 1946, Wake Superior Court, before Thompson, J., and a jury, the defendant herein, J. N. Cannon was prosecuted upon indictment charging him with subornation of perjury, which resulted in a verdict of guilty and sentence of three years in the State's Prison. From the judgment thus pronounced, the defendant gave notice of appeal to the Supreme Court.

Within the time allowed, or subsequently extended by the solicitor, the defendant duly served his statement of case on appeal. This was seasonably returned by the solicitor together with his exceptions and objections. Within 15 days thereafter, and before the case and exceptions had been mailed to the judge with request to fix time and place for settling case before him, Judge Thompson met an untimely death at his home in Elizabeth City.

Thereupon, counsel for defendant filed with the Clerk of Wake Superior Court the record in the case showing an unsettled statement of the case on appeal, had the same certified to this Court, and moves here for a new trial agreeably to the usual practice in such cases. State v. Parks, 107 N.C. 821, 12 S.E. 572; Rector v. Capitola Mfg. Co., 188 N.C. 807, 125 S.E. 629. The motion was filed here on 29 March, 1947.

Thereafter on April 1, 1947, the solicitor filed notice in the office of the Clerk of the Superior Court of Wake County, offering to withdraw his exceptions to the defendant's statement of case on appeal and to accept the defendant's statement thereof as the case on appeal.

Upon this notice and motion of the solicitor being certified here the Attorney General moves that the case be heard on the defendant's statement of case on appeal, disregarding the solicitor's abandoned exceptions and objections.

Harry M. McMullan, Atty. Gen., and Ralph M. Moody, Asst. Atty Gen., for the State.

Edward F. Griffin and Yarborough & Yarborough, all of Louisburg, for defendant.

STACY Chief Justice.

It is conceded that the defendant's right of appeal, G.S. s 15-180, and his right to have the case made up, or a postea properly prepared, G.S. ss 1-282, 1-283, are not to be abridged, except through his own fault or laches. State v. Moore, 210 N.C. 686, 188 S.E. 421. Here, however, the...