State v. Moore
| Decision Date | 23 September 1936 |
| Docket Number | 75. |
| Parties | STATE v. MOORE. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County.
Martin Moore was convicted of murder, and he appeals. On motion by the State to docket and dismiss the appeal, and counter motion by Martin Moore for writ of certiorari to have the case heard on appeal.
Certiorari allowed.
Where from lack of time or other cogent reason case is not ready for hearing on appeal, appellant may, within time prescribed for bringing appeal, docket the record proper and move for certiorari, which motion will not issue as matter of right but may be allowed by Supreme Court in its discretion. Supreme Court Rule 5.
Accused who was convicted of murder at August term of superior court and by consent was allowed 45 days in which to make out and serve statement of case on appeal, was not entitled to certiorari to have case heard on appeal, and appeal should have been dismissed where accused on day of call of docket from accused's district, had not docketed record nor informed court of reason, but since accused's life was at stake and he showed merit, court allowed certiorari. Supreme Court Rule 5.
Sanford W. Brown, of Asheville, for appellant.
A. A F. Seawell, Atty. Gen., and Harry McMullan, Asst. Atty. Gen for the State.
At the August term, 1936, Buncombe superior court, which convened August 17, the defendant herein, Martin Moore, was tried upon indictment charging him with the murder of one Helen Clevenger, which resulted in a conviction of murder in the first degree and sentence of death. From the judgment thus entered, the defendant gave notice of appeal to the Supreme Court, and by consent was allowed 45 days within which to make out and serve his statement of case on appeal, and the solicitor was given 30 days thereafter to prepare and file exceptions or countercase.
The fall term of this court commenced August 31, and the call of the docket from the Nineteenth district, the district to which the appeal belongs, was scheduled for Wednesday, September 9.
Observing that no appeal bond had been filed (rule 6, § 1), that no application had been made by the defendant to appeal in forma pauperis (State v. Stafford, 203 N.C. 601, 166 S.E. 734), and that the record proper had not been docketed as a basis for motion for certiorari to preserve the right of appeal as required by the rules (State v. McLeod, 209 N.C. 54, 182 S.E. 713; State v. Harris, 199 N.C. 377, 154 S.E. 628), the Attorney General of the state and the solicitor of the district, on September 5, supererogatorily notified counsel for defendant that motion to docket and dismiss the appeal would be made on September 9, which was done. On the following day, September 10, counsel for defendant appeared and moved for certiorari.
Under the settled rules of procedure, an appeal from a judgment rendered prior to the commencement of a term of the Supreme Court must be brought to the next succeeding term; and, to provide for a hearing in regular order, it is required that the appeal shall be docketed here 14 days before entering upon the call of the district to which it belongs, with the proviso that appeals in civil cases (but not so in criminal cases) from the First, Second, Nineteenth, and Twentieth districts, tried between the first day of January and the first Monday in February, or between the first day of August and the fourth Monday in August, are not required to be docketed at the immediately succeeding term of this court, though if docketed in time for hearing at said first term, the appeal will stand regularly for argument. Rule 5, vol. 200, p. 816, as amended, vol. 203, p. 866; State v. Trull, 169 N.C. 363, 85 S.E. 133.
The single modification of this requirement, sanctioned by the decisions, is, that where, from lack of sufficient time or other cogent reason, the case is not ready for hearing, it is permissible for the appellant, within the time prescribed, to docket the record proper and move for a certiorari, which motion may be allowed by the court in its discretion, on sufficient showing made (State v. Angel, 194 N.C. 715, 140 S.E. 727), but such writ is not one to which the moving party is entitled as a matter of right. State v. Farmer, 188 N.C. 243, 124 S.E. 562. The issuance of a writ of certiorari, however, does not perforce change the time already fixed by agreement of the parties, or by order of court, for serving statement of case on appeal, and exceptions or countercase. Smith v. Smith, 199 N.C. 463, 154 S.E. 737.
If the record and transcript are not docketed here at the proper time and no certiorari is allowed, the court below, on proof of such facts may, on proper notice, adjudge that the appeal has been abandoned, and proceed in the cause as if no appeal had been taken. State v. Taylor, 194 N.C. 738, 140 S.E. 728; Dunbar v....
To continue reading
Request your trial
-
State v. Moore
...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. time for serving defendant's statement of case on appeal expired October 6. State v. Moore, supra. 7. Return to the writ of certiorari ......
-
State v. Lampkin
...whether by consent of counsel or by order of court or by consent of counsel with approval of the court, can make no difference. State v. Moore, supra. The rules governing appeals are mandatory and not Calvert v. Carstarphen, 133 N.C. 25, 45 S.E. 353. Neither the parties, nor their counsel, ......
-
State v. Presnell
...the Supreme Court, 221 N.C. 546. Counsel cannot waive this rule. The rules of this Court are mandatory, and not directory. State v. Moore, 210 N.C. 459, 187 S.E. 586. rules of practice governing the time for docketing appeals in the Supreme Court, or for applying for a writ of certiorari, w......
-
State v. Laurence
... ... The defendant gave notice of appeal to the ... Supreme Court and was allowed 30 days within which to serve ... statement of case on appeal. Nothing has been done toward ... perfecting the appeal. The time allowed for serving statement ... of case has long since expired. State v. Moore, 210 ... N.C. 459, 187 S.E. 586 ... The ... prisoner, having failed to make out and serve statement of ... case on appeal, has lost his right to prosecute his appeal, ... and the motion of the State to docket and dismiss must be ... allowed. However, this being a case in ... ...