State v. . Thomas

114 S.E. 12, 184 N.C. 666, 1922 N.C. LEXIS 161

• Court: Supreme Court of North Carolina
• Decided: October 25, 1922
• Status: Published

Opinion

Adams, J.

At tbe January Term, 1922, of tbe Superior Court of Cabarrus County, tbe defendant was convicted of murder in tbe second degree, and from tbe judgment pronounced be appealed to tbe Supreme Court. His appeal in apt time was docketed at tbe spring term, but as tbe case on appeal bad not tben been settled, a certiorari was granted on motion of tbe defendant, after wbicb tbe case on appeal was settled by tbe trial judge, and in due time was certified and filed in tbe office of tbe clerk of tbis Court.

Tbe defendant now files bis petition for a second writ of certiorari, on tbe alleged ground tbat tbe case on appeal does not correctly and truly set forth certain things wbicb occurred on tbe trial and omits matters wbicb are important for tbe defense. To set out in detail tbe particular matters referred to in tbe petition would serve no useful purpose. In bis petition tbe defendant alleges tbat be “bas reason to believe, and does believe, tbat said omissions and misstatements were made by reason of mistake or inadvertence on tbe part of Judge Ray, and tbat be will supply tbe omissions and correct tbe misstatements if tbe court will direct to bim a writ of certiorari empowering and directing bim to certify to tbis Court tbe truth with regard to tbe said matters.” In tbe defendant’s brief bis counsel say, “We feel tbat an application to bim [tbe trial judge] by us for a letter [suggesting tbat tbe ease on appeal should be amended] would be worse than futile.” So far as tbe record shows tbe judge who tried tbe case bas not indicated bis readiness to change bis statement of tbe ease on appeal. Nor bas be been asked to do so. Tbe defendant requests us to bold tbat tbe case on appeal is incorrect notwithstanding the judge’s certificate that it is correct. Such procedure would lead to interminable perplexity. In a number of cases it has been field tfiat tfie settlement by tfie trial judge of a case on appeal to tfie Supreme Court imports verity and must be accepted as absolutely true, and tfiat'a certiorari will .not be granted requiring fiim to make up a new ease or to insert matters alleged to fiave been omitted. S. v. Gay, 94 N. C., 822; S. v. Gooch, ibid., 982; S. v. Journigan, 120 N. C., 568; Cameron v. Power Co., 137 N. C., 101; Slocumb v. Construction Co., 142 N. C., 349 ; S. v. Faulkner, 175 N. C., 788. In Barber v. Justice, 138 N. C., 21, the Chief Justice said: “It is only wfien tfie judge fias settled tfie case, in tfie exercise of fiis proper jurisdiction, tfiat upon affidavit of error therein and a letter from tfie judge tfiat fie will correct it if given tfie opportunity, tfie Court will give fiim such opportunity. Such letter from tfie judge is required, not as a courtesy to fiim, nor as an acknowledgment of any inherent discretion in fiim, but because it would usually be- doing a vain thing, and most often would result in needless delay, to grant a certiorari to give tfie judge opportunity to correct a case, already certified by fiim as correct, unless counsel have fiad tfie diligence to procure a letter from tfie judge tfiat fie wishes to make tfie correction.” For these reasons tfie petition is denied.

Petition denied.