State v. Hawkins

187 S.E.2d 418, 14 N.C. App. 127, 1972 N.C. App. LEXIS 2055

Opinion

BRITT, Judge.

Defendant assigns as error the entering of judgment absolute against the cash bond on the same day that defendant was called and failed to appear.

G.S. 15-113 provides in pertinent part as follows:

“ . . . where the defendant deposits cash in lieu of bond or recognizance, upon his failure to appear for trial in accordance with the requirements of such cash bond then judgment nisi on the cash bond shall be entered and the defendant shall be charged with legal notice thereof without issuance or service of a scire facias or other notice and after thirty days or at the next term, whichever is later, judgment absolute forfeiting and condemning the cash bond shall be entered if the defendant then fails to appear or upon appearance fails to show legal excuse or other satisfactory explanation of his non appearance at the term when judgment nisi was entered.”

The assignment of error is sustained. The quoted statute clearly provides that judgment absolute against a cash bond shall not be entered until “after thirty days or at the next term, whichever is later,” following the date the defendant is called and fails to appear. Defendant herein was deprived of his right to appear and show legal excuse or other satisfactory explanation for his failure to appear when called on 7 June 1971.

For the reasons stated, the judgment absolute entered against the cash bond is

Reversed.

Judges Campbell and Graham concur.