State v. . Duncan

12 S.E. 382, 107 N.C. 818

Opinion

Avery, J.

after stating the facts: The affidavit required by the statute (The Code, §1235), must embody the statements: First, that the defendant is'wholly unable to give security for the costs; secondly, that he is advised by counsel that he has reasonable cause for the appeal prayed for; third, that the application is made in good faith.” State v. Moore, 93 N C., 500; State v. Jones, 93 N. C., 617. It is not a matter of discretion with the Court, but it is the right of the State to have an appeal dismissed where there is a failure to comply with either of the three essential requirements of the law. State v. Payne, 93 N. C., 613. The Solicitor is not authorized to waive compliance with it. State v. Moore, supra.

The affidavit is fatally defective, and the motion of the. Attorney General to dismiss must be granted.

Appeal dismissed.