State v. Taylor
| Decision Date | 21 December 1927 |
| Docket Number | (No. 448.) |
| Citation | 140 S.E. 728 |
| Parties | STATE. v. TAYLOR. |
| Court | North Carolina Supreme Court |
Will Taylor was convicted of burglary in the first degree, and he appeals. On motion to docket and dismiss the appeal. Appeal dismissed.
D. G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.
This was a criminal prosecution tried at the April term, 1927, Gaston superior court, upon an indictment charging the prisoner with burglary in the first degree, which resulted in a conviction and sentence of death. The defendant gave notice of appeal, but has failed to prosecute same, though he was allowed to appeal in forma pauperis.
It is now the settled rule of procedure that an appeal from a judgment rendered prior to the commencement of a term of the Su preme Court must be brought to the next succeeding term; and, to provide for a hearing in regular order, it is required that the same 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, Third, and Fourth districts, tried between the 1st day of January and the first Monday in February, or between the 1st 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. 192, N. C. p. 841.
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 bearing, it is permissible for the appellant, within the time prescribed, to docket the record proper and move for 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).
Indeed, 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. Dunbar v. Tobacco Growers, 190 N. C. 608, 130 S. E. 505; Jordan v. Simmons, 175 N. C. 540, 95 S. E. 919; Avery v. Pritchard, 93 N. C. 266. And it is provided by C. S. § 4654, a statute applicable to criminal cases, that if, for any reason, the defendant wishes to withdraw his appeal before the same is docketed here, he may go, or be taken, before the clerk of the superior court in which he was convicted, and, upon signification of his desire, the said clerk is authorized to enter such withdrawal upon the record of the case and notify the sheriff, who is directed forthwith to execute the sentence according to the mittimus to him directed.
The prisoner having failed to prosecute his appeal, or to comply with the rules governing such...
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State v. Dingle, 726
...of the prisoners are involved, State v. Edney, 202 N.C. 706, 164 S.E. 23; State v. Goldston, 201 N.C. 89, 158 S.E. 926; State v. Taylor, 194 N.C. 738, 140 S.E. 728; State v. Ward, 180 N.C. 693, 104 S.E. 531. No error appears on the record except in the judgment. The cause, therefore, will b......
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State v. Sloan, 435
...makes reference to the trial or the crime of which the defendant was convicted. State v. Edney, 202 N.C. 706, 164 S.E. 23; State v. Taylor, 194 N.C. 738, 140 S.E. 728. Furthermore, the defendant in the trial below did not challenge the validity of the proceedings in the City Court of Raleig......
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State v. Taylor
...140 S.E. 728 194 N.C. 738 STATE v. TAYLOR. No. 448.Supreme Court of North CarolinaDecember 21, Will Taylor was convicted of burglary in the first degree, and he appeals. On motion to docket and dismiss the appeal. Appeal dismissed. [140 S.E. 729] D. G. Brummitt, Atty. Gen., and Frank Nash, ......
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State v. Joyner
...defendant was convicted." Id. at 673, 78 S.E.2d at 739; citing State v. Edney, 202 N.C. 706, 164 S.E. 23 (1932), and State v. Taylor, 194 N.C. 738, 140 S.E. 728 (1927). However, in this case the court took notice of the transcript of the trial which was included in the record. This Court, i......