State v. Marion
| Decision Date | 06 May 1931 |
| Docket Number | 393. |
| Citation | 158 S.E. 406,200 N.C. 715 |
| Parties | STATE v. MARION. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Davidson County; Sink, Special Judge.
Tom Marion was convicted of murder in the second degree, and he appeals.
No error.
This is a criminal action in which the defendant was tried on an indictment for the murder of his wife, Susie Marion. There was a verdict that defendant is guilty of murder in the second degree.
From judgment that defendant be confined in the state's prison for a term of not less than twenty nor more than thirty years, he appealed to the Supreme Court.
L. B Williams and Gaston A. Johnson, both of High Point, for appellant.
Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen for the State.
The defendant in this action, having been convicted of a criminal offense in the superior court of Davidson county, appealed from the judgment of said court, without giving adequate security to abide by the sentence, judgment, or decree of this court, as required by statute. C. S. § 4650. He relied upon an order made by the trial judge allowing him to appeal without giving such security. C. S. § 4652. This order was made on the application of the defendant to the trial judge. C. S. § 4651. The affidavit appearing in the record in support of the application is, however, fatally defective for that it does not appear therein that the application was made in good faith. It has been uniformly held by this court in an unbroken line of authoritative decisions, that, when the defendant in a criminal action has been convicted in the superior court, and has appealed from the judgment of said court to this court, without giving security as required by C. S. § 4650, strict compliance with all the requirements of C. S § 4651, is essential; otherwise this court acquires no jurisdiction of the appeal. The affidavit filed by the defendant in support of his application for an order permitting him to appeal without giving security must show (1) that the defendant is wholly unable to give security for costs; (2) that he is advised by counsel that he has reasonable cause for the appeal; and (3) that the application is in good faith. These are the requirements of the statute, and must be complied with. State v. Moore, 93 N.C. 500. In State v. Martin, 172 N.C. 977, 90 S.E. 502, it is said: "It has been repeatedly held that an order permitting such appeal in a criminal case is fatally defective if the affidavit does not comply with the statute, because the requirement is jurisdictional, and unless the affidavit is sufficient the appeal must be dismissed as a 'matter of right, and not of discretion." D' See State v. Brumfield, 198 N.C. 613, 152 S.E. 926; State v. Martin, 172 N.C. 977, 90 S.E. 502; State v. Smith, 152 N.C. 842, 67 S.E. 965; State v. Atkinson, 141 N.C. 734, 53 S.E. 228; State v. Bramble, 121 N.C. 603, 28 S.E. 269. In State v. Duncan, 107 N.C. 818, 12 S.E. 382, it is said that in such cases, where the affidavit is not sufficient, it is the right of the state to have the appeal dismissed.
When the motion of the state in the instant case that the appeal be dismissed, for that it does not appear in the affidavit in the record that the application for leave to appeal in forma pauperis was made in good faith, was called for hearing in this court, the defendant moved for leave to file a certificate of the clerk of the superior court that the affidavit had been amended, curing the defect. This motion was not resisted by the Attorney General, and was allowed by the court. A certificate signed by the clerk of the superior court of Davidson county, showing that the affidavit has been amended, and as amended fully complies with the requirements of the statute, has been filed in this court. For this reason the motion of the state is denied. The defect in the record having been cured, this court now has jurisdiction of the appeal.
The sole question presented for decision by defendant's appeal is whether there was error of law in the refusal of the trial court to allow his motion made at the conclusion of all the evidence that the action be dismissed as of nonsuit, for that the evidence introduced at the trial was not sufficient to sustain a verdict that the defendant is guilty as charged in the indictment. C. S. § 4643. The motion was first made when the state had produced its evidence and rested its case. It was then denied, and defendant excepted. The defendant introduced his evidence as allowed by the statute, and at the conclusion of all the evidence renewed his motion. It was again denied, and defendant excepted. This latter exception, on which the only assignment of error relied on by defendant in this court is based, requires a consideration of the entire evidence in order to determine whether or not there was error in the trial as contended by defendant on his appeal to this court. State v. Earp, 196 N.C. 164, 145 S.E. 23; State v. Pasour, 183 N.C. 793, 111 S.E. 779; State v. Brinkley, 183 N.C. 720, 110 S.E. 783.
The practice firmly established in this jurisdiction, and the rule uniformly applied by this court, in considering and deciding the question presented by this appeal, have been recently restated...
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State v. Anderson
...the sufficiency of the evidence, taken in its most favorable light for the prosecution, to carry the case to the jury. State v. Marion, 200 N.C. 715, 158 S.E. 406. there is such evidence is a question of law for the court to determine. The credibility, weight, and effect of the testimony ar......
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State v. Stafford
...(2) that he is advised by counsel he has reasonable cause for the appeal prayed, and (3) that the application is in good faith. State v. Marion, supra; v. Moore, supra; State v. Martin, 172 N.C. 977, 90 S.E. 502. The requirements of the statute are mandatory and not directory. Hanna v. Timb......
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State v. Landin, 439.
...is required merely to ascertain whether there is any competent evidence to sustain the allegations of the indictment. State v. Marion, 200 N.C. 715, 158 S.E. 406; State v. Carlson, 171 N.C. 818, 89 S.E. 30; State v. Rountree, 181 N.C. 535, 106 S.E. 669. On the other hand, a careful perusal ......
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Powell v. Moore
...c. 236, § 1), are different from those in a civil action, C. S. § 649, as was pointed out in State v. Stafford, supra, and State v. Marion, 200 N.C. 715, 158 S.E. 406. The of both statutes, however, are jurisdictional, and unless complied with in all respects, the appeal is not properly in ......