State v. Mccollum

• Court: North Carolina Supreme Court
• Writing for the Court: DEVIN, Justice
• Citation: State v. Mccollum, 6 S.E.2d 503, 210 N.C. 737 (N.C. 1940)
• Decision Date: 03 January 1940
• Docket Number: No. 721.,721.
• Parties: STATE. v. McCOLLUM.

6 S.E.2d 503

210 N.C. 737

STATE.

v.McCOLLUM.

No. 721.

Supreme Court of North Carolina.

Jan. 3, 1940.

Appeal from Superior Court, Forsyth County; Felix E. Alley, Judge.

C. A. McCollum was convicted of manslaughter and was placed on probation for period of five years, and as special condition of probation was required to pay into the office of clerk of superior court for the use and benefit of Lola Fields, mother of the deceased, the sum of $6 per week for a period of five years. Upon death of mother of deceased, defendant petitioned to be relieved of further payments, and a counter petition was filed by Essex Fields, father of deceased. From judgment authorizing defendant to discontinue further payments, the State appeals.

Appeal dismissed.

Harry McMullan, Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for the State.

Winfield Blackwell, Jr., of Winston-Salem, amicus curiae.

Elledge & Wells, of Winston-Salem, for defendant.

DEVIN, Justice.

This case comes to us upon an appeal by the State from a judgment rendered by the court below upon the petition of the defendant for the construction of the judgment heretofore entered in the cause. The material facts are these. At June Term, 1938, the defendant McCollum plead guilty to the charge of manslaughter for the unlawful slaying of one Melton Fields. The judgment entered by the judge presiding at that term provided that the prayer for judgment and sentence be continued, and that defendant be placed on probation for a period of five years, under the supervision of the North Carolina Probation Commission. It was further ordered that as a special condition of probation the defendant should "pay into the office of the Clerkof the Superior Court for the use and benefit of Lola Fields, mother of the deceased, the sum of six dollars per week for a period of five years." In March, 1939, Lola Fields died. Defendant thereupon petitioned the court that he be relieved of further payments. A counter petition was filed by Essex Fields, father of the deceased Melton Fields and husband of Lola Fields, praying that the judgment be construed to require continuance of payments by defendant for the benefit of himself or the brothers and sisters of deceased.

The court below found that the defendant had complied with all the terms of the probation order, and adjudged that the requirement for the payment of six dollars per week for the use and benefit of Lola Fields had terminated and abated on her death, and authorized defendant to discontinue further payments. The State excepted and appealed.

Under the common law no appeal lay from a judgment adverse to the sovereign, and there is no statute in North Carolina authorizing an appeal by the State under the circumstance disclosed by the record in this case. State v. Jones, 5 N.C. 257; State v. Swepson, 82 N.C. 541; State v. Savery, 126 N.C. 1083, 36 S.E. 22, 49 L.R.A. 585. The statute, C.S. § 4649, provides that an appeal to this court may be taken by the State in the following cases, and no other: (1) upon a special verdict, (2) upon a demurrer, (3) upon a motion to quash, (4) upon arrest of judgment.

In State v. Swepson, supra, it was held the State did not have right of appeal from the denial...