State v. Mcdraughon

• Decision Date: 21 October 1914
• Docket Number: (No. 193.)
• Citation: 83 S.E. 181,168 N.C. 131
• Court: North Carolina Supreme Court
• Parties: STATE. v. McDRAUGHON.

83 S.E. 181

168 N.C. 131

STATE.

v.McDRAUGHON.

(No. 193.)

Supreme Court of North Carolina.

Oct. 21, 1914.

1. Criminal Law (§ 1086^*)—Appeal—Record —Indictment.

Where, prior to appeal, the indictment was lost, and an inspection thereof was necessary to a review of the denial of defendant's motion to quash, and that the Supreme Court might pass on the pertinency of exceptions to the charge, the burden was on appellant to take proper steps in the trial court to supply the indictment and include it in the transcript, and his failure to do so was ground for dismissal of the appeal.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2736-2769, 2770, 2772, 2794; Dec. Dig. § 1086.*]

2. Criminal Law (§ 1114*)—Appeal—Jurisdiction op Supreme Court.

The jurisdiction of the Supreme Court on a criminal appeal is not original, but appellate; the court being confined to the review of errors alleged in the case on appeal, or those appearing on the face of the transcript.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2918, 2921; Dec. Dig. § 1114.*]

3. Criminal Law (§ 1141*)—Appeal— Presumptions—Burden op Proof.

On a criminal appeal, the presumption that the judgment is correct obtains, and the burden is on appellant to show errors.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3014, 3015, 3020, 3022, 3023; Dec. Dig. § 1141.*]

4. Records (§ 17*)—Restoration — Indictment.

Where an indictment had been lost, the court in which it was filed had jurisdiction to supply the same on motion based on affidavits.

[Ed. Note.—For other cases, see Records, Cent. Dig. §§ 25, 26, 28-35, 43; Dec. Dig. § 17.^*]

Appeal from Superior Court, Sampson County; Whedbee, Judge.

Walter McDraughon was convicted of an offense, and he appeals. On motion to dismiss. Granted.

This is a motion to dismiss the appeal because of the insufficiency of the transcript. The defendant was tried in the superior court upon an indictment duly found, and, upon conviction, was sentenced to serve eight months upon the county roads. Since the trial the bill of indictment has been lost, without fault, so far as the record discloses, upon the part of the defendant, and therefore is not a part of the transcript. The defendant has not made any effort to havethe indictment supplied in the superior court, nor has he moved here for a certiorari.

There was a motion to quash the indictment, which was overruled, and there are certain exceptions to the charge of the court appearing in the case on appeal.

J. D. Kerr, Sr., of Clinton, for appellant.

Attorney General Bickett, for the State.

ALLEN, J. [1] An inspection of the indictment is necessary in the consideration of the motion to quash, and also in order that we may pass upon the pertinency of the exceptions to the charge, and the question is therefore presented, upon the motion to dismiss, as to whose duty it is to supply the defect in the transcript.

In cases of this character, the jurisdiction of this court is not original, but appellate, and we are confined to the alleged errors in the case on appeal or those appearing on the face of the transcript of the record.

The presumption is that the judgment of the superior court is correct, and the burden is on the appellant to show errors. As far back as State v. Butts, 91 N. C. 524, the requisites of the transcript were pointed out, and in State v. Frizell, 111 N. C. 724, 16 S. E. 410, the court said:

"An appellant does not do his duty by simply taking an appeal and leaving it to the clerk to send up what he may deem necessary. * * * It is the appellant's duty to see that the record is properly and sufficiently made up and transmitted. * * * Hereafter the court will dismiss the appeal or affirm the judgment, as the case may be, when the record is defective in any material particular, in all cases in which the Attorney General, or the opposite party (in civil cases), sees proper to make such motion, unless sufficient excuse for the apparent laches is shown."

And again, in State v. May, 118 N. C. 1205, 24 S. E. 118:

"The transcript fails to show that the court was held by a judge at the time and place required by law, that a grand jury was drawn, sworn, and charged, and presented the indictment, and there are other defects. It is the duty of the appellant to have the record sent up; and when it is in such condition as above stated, usually the court will dismiss the appeal, unless it is shown that the appellant was guilty of no laches; otherwise the appellant could always obtain six months' delay by simply failing to have a sufficient record sent up."

It therefore appears to be well settled that it was the duty of the defendant to see that the indictment was a part of the transcript, and, if lost, he ought to have applied to the superior court to supply it, or, if no court convened in the county of Sampson prior to the time of docketing the transcript here, he ought to have sent to this court as much of the record as could be procured, and then applied to this court for a certiorari, in order to give him an opportunity to move in the superior court. He has done neither, and has offered no excuse...