State v. Moore

• Citation: 188 S.E. 421,210 N.C. 686
• Decision Date: 25 November 1936
• Docket Number: 75.
• Parties: STATE v. MOORE.
• Court: United States State Supreme Court of North Carolina

188 S.E. 421

210 N.C. 686

STATE v. MOORE.

No. 75.

Supreme Court of North Carolina

November 25, 1936

Appeal from Superior Court, Buncombe County; F. D. Phillips, Judge.

Martin Moore was convicted of murder in the first degree, and he attempts an appeal. On motion by the State to affirm the judgment, and application of defendant for certiorari.

Certiorari disallowed and judgment affirmed.

Criminal prosecution tried upon indictment charging the defendant with the murder of one Helen Clevenger.

Verdict Guilty of murder in the first degree.

Judgment Death by asphyxiation.

Defendant appeals.

Where there is no controversy as to time of service, statement of case on appeal or exceptions or countercase not served in time may be disregarded.

Sanford W. Brown, of Asheville, for appellant.

A. A F. Seawell, Atty. Gen., and Harry McMullan, Asst. Atty. Gen., for the State.

STACY Chief Justice.

The chronology of this case is as follows:

1. The defendant was tried, convicted of murder in the first degree, and sentenced to death at the August term, 1936, Buncombe superior court, which convened August 17 and adjourned August 22.

2. Notice of appeal was duly given in open court, and the defendant allowed 45 days to prepare and serve his statement of case on appeal. The solicitor was allowed 30 days thereafter to file exceptions or serve countercase.

3. The appeal was due to be heard at the next succeeding term of this court following the trial in the superior court, which was the present fall term, as it commenced August 31. State v. Trull, 169 N.C. 363, 85 S.E. 133; Pentuff v. Park, 195 N.C. 609, 143 S.E. 139.

4. On September 9, at the call of the docket from the Nineteenth district, the district to which the case belongs, it appearing that nothing had been done to perfect the appeal, the Attorney General lodged a motion to docket and dismiss the defendant's appeal under rule 17. This motion was held in abeyance. State v. Moore, 210 N.C. 459, 187 S.E. 586.

5. On the following day, September 10, the defendant filed a counter-motion for certiorari to preserve his right of appeal or to have the case brought up and heard on appeal. This motion was allowed and the case set for hearing at the end of the Seventh district. State v. Moore, supra.

6. The time for serving defendant's statement of case on appeal expired October 6. State v. Moore, supra.

7. Return to the writ of certiorari was made by the clerk of the superior court of Buncombe county on October 15, in which he certifies "that the time designated by the Trial Judge and given to the defendant to make up and serve his case on appeal to the Supreme Court has expired, and that the said defendant has not made up or caused to be made up a case on appeal to the Supreme Court, or filed the same in this office; and I further certify that there has been no enlargement or extension of time for making up and serving the defendant's case on appeal to the Supreme Court."

8. Thereafter, on October 20, the defendant served on the solicitor of the district his purported statement of case on appeal.

9. The solicitor excepted to the statement on the dual ground of inaccuracy and untimeliness of serving-14 days after time for service had expired-and motion was lodged before the trial judge to strike said purported statement from the file of the papers in the case. This motion was allowed October 26 under authority of Edwards v. Perry, 208 N.C. 252, 179 S.E. 892; Roberts v. Bus Co., 198 N.C. 779, 153 S.E. 398; Hicks v. Westbrook, 121 N.C. 131, 28 S.E. 188; and State v. Ray, 206 N.C. 736, 175 S.E. 109.

10. Upon the call of the case at the end of the Seventh district on November 6, the record proper and the return to the writ of certiorari was all that properly appeared on the docket. No case was before the court for argument, albeit the defendant had sent up his purported statement of case on appeal, accompanied by brief. The State moved to affirm the judgment, as there is no error apparent on the face of the record.

11. In a second application filed November 12, the defendant again invokes the aid of the court, and seeks to have the case reviewed on "certiorari in the nature of a writ of error" under authority of State v. Stamey, 209 N.C. 581, 183 S.E. 736, 737; State v. Tripp, 168 N.C. 150, 83 S.E. 630; State v. Lawrence, 81 N.C. 522; State v. Green, 85 N.C. 600; State v. McGimsey, 80 N.C. 377, 30 Am.Rep. 90; State v. Jefferson, 66 N.C. 309; Ex parte Biggs, 64 N.C. 202; Brooks v. Morgan, 27 N.C. 481.

The unlimited right of appeal, which for all practical purposes obtains in this jurisdiction (habeas corpus excepted), carries with it the necessity of conforming to the established rules of procedure, when such right is sought to be exercised. Mimms v. R. R., 183 N.C. 436, 111 S.E. 778. Indeed, it was said in State v. Butner, 185 N.C. 731, 117 S.E. 163, 164, that "an appeal is not a matter of absolute right, but conditioned upon the observance of the requirements for presenting the appeal in this court."

It is apparent from the foregoing chronology that the defendant has twice lost his right to bring up the "case on appeal," first on September 9 and again on October 6. It was preserved to him the first time because our rules alone were involved, which were relaxed in his favor, but we are powerless to save him from the second default. No application was made to the solicitor for an extension of time before it expired, nor to waive it afterwards, and defendant's purported statement of case on appeal was ordered stricken from the files by the trial judge. The right to bring up the "case on appeal" is gone. State v. Allen, 208 N.C. 672, 182 S.E. 140; Edwards v. Perry, supra; Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126.

It is axiomatic among those engaged in appellate practice that a "statement of case on appeal not served in time" may be disregarded or treated as a nullity. Edwards v. Perry, supra; Hicks v. Westbrook, 121 N.C. 131, 28 S.E. 188; Hardee v. Timberlake, 159 N.C. 552, 75 S.E. 799; Guano Co. v. Hicks, 120 N.C. 29, 26 S.E. 650; Peebles v. Braswell, 107 N.C. 68, 12 S.E. 44; Simmons v. Andrews, 106 N.C. 201, 10 S.E. 1052; Randleman Mfg. Co. v. Simmons, 97 N.C. 89, 1 S.E. 923. The same rule applies to appellee's exceptions or countercase when served too late. State v. Ray, supra; Smith v. Smith, 199 N.C. 463, 154 S.E. 737; Cummings v. Hoffman, 113 N.C. 267, 18 S.E. 170. It was held in State v. Humphrey, 186 N.C. 533, 120 S.E. 85, that the trial judge was without authority to change appellant's case, though regarded by him as erroneous, when appellee's exceptions were not served in time. To like effect is the decision in State v. Ray, supra. Of course, where there is a controversy as to the time of service, "that's a difference matter," as the late Justice Brogden was wont to quote his Durham friend of French descent and accent. Smith v. Smith, supra; Holloman v. Holloman, 172 N.C. 835, 90 S.E. 10. Here, there is no such controversy. The facts are admitted.

In appellate matters, as in other, "There's a time for all things." Comedy of Errors, Act II, Sc. 2, L. 66.

Conceding that his right to have the case brought up and heard on appeal has been lost, the defendant invokes the supervisory power of the court under article 4, § 8, of the Constitution, which provides that "the Supreme Court * * * shall have the power to issue any remedial writs necessary to give it a general supervision and control over the proceedings of the inferior courts."

It is suggested by the Attorney General that under this provision writs are issuable only to determine the sufficiency of the proceedings as they appear of record. State v. Tripp, supra; State v. Webb, 155 N.C. 426, 70 S.E. 1064; King v. Taylor, 188 N.C. 450, 124 S.E. 751.

Speaking to the matter in Ex parte Biggs, 64 N.C. 202, Pearson, C.J., delivering the opinion of the court, said: "The writ of certiorari is used for two purposes: One, as a substitute for an appeal, where the opportunity for bringing up the matter by appeal, is lost without laches. * * * The other is where the writ of certiorari is in the nature of a writ of error, and it is used where the writ of error proper does not lie, Brooks v. Morgan, 27 N.C. 481; Raleigh, Intendant & Com'rs v. Kane, 47 N.C. 288. By this writ, only the record proper is brought up for review, and no postea or case is to be made up."

And in State v. Stamey, supra, where the scope of the writ was apparently enlarged (State v. Tripp, supra), it was said upon the return to the certiorari that "the writ was improvidently granted."

Without making definite ruling on the question of power, or the appropriateness of defendant's application for "certiorari in the nature of a writ of error," we proceed to a consideration of the application itself.

In State v. Angel, 194 N.C. 715, 140 S.E. 727, 728, it is said: "Certiorari is a discretionary writ, to be issued only for good or sufficient cause shown, and the party seeking it is required, not only to negative laches on his part in prosecuting the appeal, but also to show merit or that he has reasonable grounds for asking that the case be brought up and reviewed on appeal. Simply because a party has not appealed, or has lost his right of appeal, even through no fault of his own, is not sufficient to entitle him to a certiorari. 'A party is entitled to a writ of certiorari when-and only when-the failure to perfect the appeal is due to some error or act of the court or its officers, and not to any fault or neglect of the party or his agent.' Womble v. Gin Co., supra [194 N.C. 577, 140 S.E 230]. Two things, therefore, should be made to appear on application for certiorari: First, diligence in prosecuting the appeal, except in cases where no...