State v. . Payne

93 N.C. 612

• Court: Supreme Court of North Carolina
• Decided: October 5, 1885
• Status: Published

Opinion

Ashe, J.,

(after stating the facts). The affidavit is not in compliance with the statute. When persons are convicted, and are unable to give security for costs, the statute provides that “ the defendant,shall have the right to appeal without giving security for costs, upon filing an affidavit that he is wholly unable to give the security for costs, and is advised by counsel that he has reasonable cause for the appeal prayed, and that the application is in good faith.” The Code, §1235. The words in italics are held to be essential in an affidavit of this nature, to secure against appeals merely for delay.

In the case of State v. Morgan, 77 N. C., 510, these words were omitted, ánd the Court said “a defendant cannot appeal without security, unless he makes an affidavit that he is advised by counsel that he has a reasonable cause for appeal, and that his appeal is in good faith.” The Court further said, “ there must be a compliance with the statute. It is not a matter of discretion.” And in State v. Divine, 69 N. C., 390, it is held that it must appear by affidavit “that the defendant is advised by counsel that he has' reasonable cause for the appeal prayed for, and that the application is in good faith. Both of these essential requisites are wanting in the record before us.” To the same effect is decided at this term. State v. Jones, post, 617.

As we have no discretion in the matter, the appeal must be dismissed.

Dismissed.