State v. Sermons

• Decision Date: 05 January 1938
• Docket Number: 727.
• Citation: 194 S.E. 469,212 N.C. 767
• Parties: STATE v. SERMONS.
• Court: North Carolina Supreme Court

194 S.E. 469

212 N.C. 767

STATE v. SERMONS.

No. 727.

Supreme Court of North Carolina

January 5, 1938

Appeal from Superior Court, Forsyth County.

James Sermons was convicted of first degree murder, and he appeals, and the State moves to docket and dismiss the appeal.

Motion allowed and appeal dismissed.

Motion by State to docket and dismiss appeal.

An appeal from conviction for first degree murder was dismissed on Attorney General's motion to docket and dismiss where defendant had lost his right to bring up case on appeal, and Supreme Court, on examination of record for errors on its face, found no defect.

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

STACY, Chief Justice.

At the September term, 1937, Forsyth superior court, the defendant herein, James Sermons, was tried upon an indictment charging him with the murder of one Carlile Miller, which resulted in a conviction of murder in the first degree and sentence of death by asphyxiation. From the judgment thus entered, the prisoner gave notice of appeal to the Supreme Court and was allowed 40 days within which to make out and serve statement of case on appeal, and the solicitor was given 30 days thereafter to prepare and file exceptions or counter case, but nothing has been done towards perfecting the appeal, albeit the prisoner was allowed to appeal in forma pauperis, and the time for serving statement of case on appeal has now expired. State v. Brown, 206 N.C. 747, 175 S.E. 116.

Having lost his right to bring up the "case on appeal," State v. Moore, 211 N.C. 686, 191 S.E. 840, the prisoner is in no position to resist the motion of the Attorney General to docket and dismiss, State v. Johnson, 205 N.C. 610, 172 S.E. 219; State v. Rector, 203 N.C. 9, 164 S.E. 339. As is customary in capital cases, however, we have examined the record to see that no error appears upon the face thereof, such errors, if any, being cognizable sua sponte. State v. Robinson, 212 N.C. 536, 193 S.E. 701.

We have discovered no defect on the face of the record proper. State v. Edney, 202 N.C. 706, 164 S.E. 23; State v. Hamlet, 206 N.C. 568, 174 S.E. 451.

Motion allowed. Appeal dismissed.