Opinion
(Filed 18 September, 1935.)
Criminal Law L a — Appeal in this case is dismissed for defendant's failure to make out and serve statement of case on appeal.
Where a defendant fails to make out and serve his statement of case on appeal within the time fixed, he loses his right to prosecute the appeal, and the motion of the Attorney-General to docket and dismiss must be allowed, but where defendant is convicted of a capital felony, this will be done only after an inspection of the record for error appearing upon its face.
MOTION by State to docket and dismiss appeal.
Attorney-General Seawell and Assistant Attorney-General Aiken for the State.
At the March Term, 1935, Buncombe Superior Court, the defendant herein, Robert Dunlap, was tried upon indictment charging him with the murder of one Pauline McMellan, alias Ola McMellan, 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 sixty days within which to make out and serve statement of case on appeal. 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. S. v. Williams, ante, 352; S. 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. S. v. Williams, supra; S. 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. S. v. Williams, supra; S. 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. S. v. Williams, supra; S. v. Hamlet, 206 N.C. 568, 174 S.E. 451.
The motion of the Attorney-General must be allowed. S. v. Williams, supra, and cases there cited.
Appeal dismissed.