State v. Jackson
| Decision Date | 21 February 1893 |
| Citation | 16 S.E. 906,112 N.C. 849 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. JACKSON. |
Appeal in Forma Pauperis — Dismissal pok Insufficient Affidavit—Amendment of Case.
1. Where the substance of an affidavit for leave to appeal in forma pauperis is set out, and shows that it does not comply with the statute, the appeal will be dismissed.
2. Correction and amendment of a case or transcript on appeal cannot be made by a party without certiorari being granted.
Appeal from superior court, Northampton county; Shuford, Judge.
Andrew Jackson was eonvicted of larceny, and appeals. Appeal dismissed.
W. W. Peebles & Son, for appellant.
The Attorney General, for the State.
The case on appeal, which was made up by appellant's counsel, no sounter case having been filed by the solicitor, recites that the defendant appealed to this court "in forma pauperis, upon filing an affidavit that he is unable to give security for the costs of the appeal." This is almost identical witli the language used in State v. Jones, 93 N. C. 617. It is there mtimated that possibly, if the recital had been simply that the defendant was permitted by the court, to appeal in forma pauperis upon affidavit filed, there would be a presumption that the affidavit was
ufficient; but where (as in that case and this) the substance of the affidavit is set out, and the courtsees that it isinsuffi-lient, the appeal must be dismissed. An appeal in forma pauperis is only permissible when the statutory requirements have been complied with. State v. Wylde, 110 N. C. 500, 15 S. E. Rep. 5, and cases there cited. The granting of the motion of the attorney general to dismiss is not a matter of discretion, but a right. State v. Morgan, 77 N. C. 510; State v. Payne, 93 N. C. 612.
Since this cause was argued and decided, and the opinion written, the defendant sends up a copy of the affidavit on which the leave to appeal was granted. No motion or order for certiorari was made, and we cannot recognize this irregular mode of sending up papers after a cause is heard without notice to the other side, and without an order of the court. Such papers become no part of die record. Notice was reiterated at last term, in the case of State v. Frizell, 16 S. E. Rep. 409, that, if there were defects in making up cases or transcripts on appeal, the court would not grant certiorari to appellants to correct the same, unless it was shown that the appellant was without default. A fortiori, the court will not permit such...
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State v. Stafford
... ... for costs" in the absence of the required affidavit, nor ... can the sufficiency of such affidavit be waived by the ... solicitor ... It was ... suggested in this same case, State v. Moore, supra, and ... repeated in State v. Jackson, 112 N.C. 849, 16 S.E ... 906, that if the recital had been simply "the defendant ... was permitted *** to appeal in forma pauperis upon affidavit ... filed," perhaps a presumption would arise as to the ... sufficiency of the affidavit on the principle of omnia rite ... acta praesumuntur, but ... ...
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State v. Smith
...of right, not of discretion. State v. Harris, 114 N.C. 830, 19 S.E. 154; State v. Rhodes, 112 N.C. 856, 16 S.E. 930; State v. Jackson, 112 N.C. 849, 16 S.E. 906; State v. Shoulders, 111 N.C. 637, 15 S.E. State v. Wylde, 110 N.C. 500, 15 S.E. 5; State v. Tow, 103 N.C. 350, 9 S.E. 411; State ......
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State v. Bramble
...of right, not of discretion. State v. Harris, 114 N. C. 830, 19 S. E. 154; State v. Rhodes, 112 N. C. 856, 16 S. E. 930; State v. Jackson, 112 N. C. 849, 16 S. E. 906; State v. Shoulders, 111 N. C. 637, 15 S. E. 877; State v. Wylde, 110 N. C. 500, 15 S. E. 5; State v. Low, 103 N. C. 350, 9 ......
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State v. Harris
... ... was allowed to appeal in forma pauperis. These are almost the ... very words used in State v. Jones, 93 N.C. 617, in ... which the motion of the attorney general to dismiss was ... allowed. The subject is discussed, and this precedent is ... followed, in the late case of State v. Jackson, 112 ... N.C. 849, 16 S.E. 906. Had the recital been simply that, ... "upon affidavit filed," defendant is allowed to ... appeal without giving bond, there would, perhaps, have been a ... presumption that the affidavit contained the statutory ... requirements; but when the substance or purport ... ...