State v. McLeod

• Decision Date: 11 December 1935
• Docket Number: 655.
• Parties: STATE v. McLEOD.
• Court: North Carolina Supreme Court

182 S.E. 713

209 N.C. 54

STATE v. McLEOD.

No. 655.

Supreme Court of North Carolina

December 11, 1935

Appeal from Superior Court, Cumberland County; Cranmer, Judge.

Willie McLeod, alias Buster McLeoud, was convicted of murder in the first degree, and he appeals.

Appeal dismissed.

Defendant failing to timely make out and serve statement of case on appeal lost right to prosecute appeal, requiring dismissal thereof.

A. A F. Seawell, Atty. Gen., and John W. Aiken and T. W. Bruton Asst. Attys. Gen., for the State.

STACY Chief Justice.

At the June term, 1934, Cumberland superior court, the defendant herein, Willie McLeod, alias Buster McLeoud, was tried upon indictment charging him, and another, with the murder of one Herbert Bridgers. The jury "for their verdict say that the defendant, Willie McLeod, is guilty of murder in the first degree." The judgment of the court was that the defendant suffer death by electrocution.

From the judgment thus entered, the defendant gave notice of appeal to the Supreme Court and was allowed to prosecute the same in forma pauperis. The clerk certifies that nothing has been done towards perfecting the appeal; that the time for serving statement of case has expired, and that no extension of time for filing same has been recorded in his office. State v. Williams, 208 N.C. 352, 180 S.E. 663; State v. Brown, 206 N.C. 747, 175 S.E. 116.

The prisoner, having failed to make out and serve statement of case on appeal within the time fixed, has lost his right to prosecute the appeal, and the motion of the Attorney General to docket and dismiss must be allowed. State v. Williams supra; State v. Johnson, 205 N.C. 610, 172 S.E. 219. It is customary, however, in capital cases, where the life of the prisoner is involved, to examine the record to see that no error appears upon its face. State v. Williams, supra; State v. Goldston, 201 N.C. 89, 158 S.E. 926. This we have done in the instant case without discovering any error on the face of the record. State v. Williams, supra; State v. Hamlet, 206 N.C. 568, 174 S.E. 451.

There is still another reason why the motion of the Attorney General must be allowed. The case was tried and judgment rendered before the commencement of the Fall term, 1934, of this court. Hence, the appeal was due to be brought to such term, the next succeeding term, and docketed here fourteen days before entering upon the call of the district to which the case belongs. Failing in this, application for certiorari at the Fall term was required to preserve the right of appeal. State v. Harris, 199 N.C. 377, 154 S.E. 628; Pruitt v. Wood, 199 N.C. 788, 156 S.E 126. ...