State v. Harris

114 N.C. 830

Opinion

Clark, J.:

The case states that the defendant prayed an appeal to the Supreme Court and “upon filing his affidavit of his inability to give security for the cost of the appeal ” was allowed to appeal in forma pauperis. These are almost the very words used in State v. Jones, 93 N. C., 617, in which the motion of the Attorney General to dismiss was allowed. The subject is discussed and this precedent is followed in the late case of State v. Jackson, 112 N C., 849. Had the recital been simply that “upon-affidavit filed” the defendant is allowed to appeal without giving bond, there would perhaps have been a presumption that the affidavit contained the statutory requirements. But when the substance or purport of the affidavit is set out and the Court sees that it is insufficient, the appeal- must be dismissed. An appeal Avithout giving bond is only allowable in cases provided by statute. It is for the Legislature to proAÚcle the requirements and restrictions as to such appeals, and when not complied with the Courts have no right to disregard the statute. State v. Rhodes, 112 N. C., 856. In such cases the motion of the Attorney General to dismiss is not a matter of discretion but a right. State v. Morgan, 77 N. C., 510; State v. Payne, 93 N. C., 612; State v. Jackson, 112 N. C., 850.

If the defendant had proper ground for a certiorari he should have moved for it before the cause was reached for argument. State v. Rhodes, 112 N. C., 857. He will not be allowed to obtain a delay of six months by his own laches in this regard.

It is not improper to say that looking into the record there appears to have been no error, even if the case had been here regularly. Appeal Dismissed.