#### STATE v. WILL TAYLOR.

(Filed 21 December, 1927.)

1. Appeal and Error — Rules of Court — Docketing—Dismissal.

A prisoner convicted of a capital felony, appealing *in forma, pauperis,*must comply with the rules regulating the docketing of cases on appeal, and when he has not done so and fails to file the record proper and move for *certiorari,*on the motion of the Attorney-General the appeal will be docketed and dismissed. Rule 5, 192 N. C., 841, C. S., 4654, allowing the convicted defendant to abandon his appeal in a criminal action in the court below, commented upon.

2. Same — Record Proper — Motions—Certiorari—Courts—Discretion.

The motion for a *certiorari*in the Supreme Court by appellant who has failed to docket his case in time under the requirements of Rule 5, may be allowed, in the discretion of the court, upon the docketing of the record proper and the showing as required for merit and want of laches.

3. Judgments — Capital Eelony — Sentence—Statutes—Appeal and Error.

The judgment in this case sentencing the defendant to. death for the commission of a capital felony, though making no reference to the trial or the crime of which the defendant was convicted, while not commended is *held*sufficient. C. S., 4659.

*739MotioN by tbe State to docket and dismiss appeal.

*Attorney-General Brummitt and Assistant Attorney-General Nash for the State.*

Stacy, C. J.

This was a criminal prosecution tried at tbe April Term, 1927, of GastoN Superior Court, upon an indictment charging tbe prisoner witb burglary in tbe first degree, wbicb resulted in a conviction and sentence of death. Tbe defendant gave notice of appeal, but has failed to prosecute same, though be was allowed to appeal *in forma pauperis.*

It is now tbe settled rule of procedure that an appeal from a judgment rendered prior to tbe commencement of a term of tbe Supreme Court must be brought to tbe next succeeding term; and, to provide for a bearing in regular order, it is required that tbe same shall be docketed here fourteen days before entering upon tbe call of tbe district to wbicb it belongs, witb tbe proviso that appeals in civil cases (but not so in criminal cases) from tbe First, Second, Third and Fourth districts, tried between tbe first day of January and tbe first Monday in February, or between tbe first day of August and tbe fourth Monday in August, are not required to be docketed at tbe immediately succeeding term of this Court, though if docketed in time for bearing at said first term, tbe appeal will stand regularly for argument. Eule 5, Yol. 192, p. 841.

Tbe single modification of this requirement, sanctioned by tbe decisions is, that where, from lack of sufficient time or other cogent reason, tbe case is not ready for bearing, it is permissible for tbe appellant, within tbe time prescribed, to docket tbe record proper and move for *certiorari,*wbicb motion may be allowed by tbe Court in its discretion, on sufficient showing made *(S. v. Angel, ante,*715), but such writ is not one to wbicb tbe moving party is entitled as a matter of right. *S. v. Farmer,*188 N. C., 243, 124 S. E., 562.

Indeed, if tbe record and transcript are not docketed here at tbe proper time and no *certiorari*is allowed, tbe court below, on proof of such facts may, on proper notice, adjudge that tbe appeal has been abandoned, and proceed in tbe cause as if no appeal bad been taken. *Dunbar v. Tobacco Growers,*190 N. C., 608, 130 S. E., 505; *Jordan v. Simmons,*175 N. C., p. 540, 95 S. E., 919; *Avery v. Pritchard,*93 N. C., 266. And it is provided by C. S., 4654, a statute applicable to criminal cases, that if, for any reason, tbe defendant wishes to withdraw bis appeal, before tbe same is docketed here, be may go, or be taken, before tbe clerk of tbe Superior Court in wbicb be was convicted, and, upon signification of Lis desire, tbe said clerk is authorized *740to enter such withdrawal upon the record of the case, and notify the sheriff, who is directed forthwith to execute the sentence according to the mittimus to him directed.

The prisoner having failed to prosecute his appeal, or to comply with the rules governing such procedure, the motion of the Attorney-General to docket and dismiss must be allowed *(S. v. Dalton,*185 N. C., 606, 115 S. E., 881), but this we do only after an examination of the record in the case to see that no error appears on the face of the record, and that none was committed on the trial (the case on appeal having been settled by the judge and being before us), as the life of the prisoner is involved. *S. v. Ward,*180 N. C., 693, 104 S. E., 531.

The judgment, while somewhat informal, as it makes no reference to the trial or the crime of which the prisoner was convicted, is, nevertheless, we conclude, sufficient to meet the requirements of O. S., 4659. This statute provides that when a death sentence is pronounced against any person, convicted of a capital offense, it shall be the duty of the judge pronouncing such sentence to make the same in writing, which shall be filed in the papers in the case against such convicted person and a certified copy thereof transmitted by the clerk of the Superior Court, in which such sentence is pronounced, to the warden of the State penitentiary as his authority for executing such death sentence.

After indictment and arraignment duly had, the prisoner was convicted of burglary in the first degree. Dr. L. N. Glenn, a physician, residing with his family in the city of Gastonia, testified that shortly after midnight, 8 February, 1927, he returned to his home where his wife and children were asleep at the time, and apprehended the prisoner standing in the living room of his dwelling-house, down stairs, on the first floor. An altercation ensued; an alarm was given; the police were called, and the prisoner was arrested on the spot, *in flagranti delicto.*

Nothing was taken from the house, though a chiffonier drawer had been opened, and Mrs. Glenn’s purse, which she had left on the table before retiring, had been opened and was lying on the floor. The prisoner had a tack-puller and a pocket knife on his person, and he stated that he came into the house through a window.

While in jail the prisoner told the officers that he went into Dr. Glenn’s house “hunting money”; that a colored man by the name of Red was with him, but that the hole in the window was too small for Red to get through, so he remained on the outside.

At the trial the prisoner testified that he was a stranger in Gastonia; that he was on his way from Birmingham, Ala., to Spencer, N. C.; that he got off the train as it passed through Gastonia and asked some *741colored boys to sbow bim where be could find a place to sleep; tbat tbey took bim in an automobile, bought some whiskey, and about 11 o’clock tbat night “be found himself getting drunk,” and tbat be has no recollection of what happened thereafter, except tbat when be “came to himself” be was in jail.

The case seems to have been tried in strict compliance with the principles of law laid down in *S. v. Allan,*186 N. C., 302, 119 S. E., 504, and other cognate cases, hence the appeal must be dismissed.

Appeal dismissed.