State v. . Martin

90 S.E. 502 | N.C. | 1916

This appeal was taken in forma pauperis from Cline, J. On motion of the State, the appeal was dismissed because the affidavit for leave to appeal without giving bond did not state, as required by Revisal 3278, that "the application is in good faith." It has been repeatedly held that an order permitting such appeal in a criminal case is fatally defective if the affidavit does not comply with the statute, because the requirement is jurisdictional, and unless the affidavit is sufficient the appeal must be dismissed as a "matter of right, and not of discretion." S. v. Bramble,121 N.C. 603, citing very numerous cases; S. v. Atkinson, 141 N.C. 735, and numerous cases since down to S. v. DeVane, 166 N.C. 283, besides other cases which have been dismissed in observance of the statute, and in accordance with the uniform precedents, by per curiam order.

The defendant now moves to reinstate, offering to file bond, or make a deposit. This would seem to be in direct denial of his affidavit, filed in this cause, that he could not do either. But (978) independently of that, he should have made this offer when the motion to dismiss was before the Court. It is too late for him to do this after the case has been regularly dismissed under the statute. As was said in Hamlin v. Tucker, 72 N.C. 503, we are not called on "to make two bites at a cherry."

There is a very old maxim, "Leges subveniunt vigilantibus, nondormientibus," which means, in plain English, that if a man has a case in court "the best thing he can do is to attend to it." Pepper v. Clegg,132 N.C. 316. The defendant did not do what the statute required in order to give this Court jurisdiction of the appeal, nor when the motion was made to dismiss on that account did he then offer to comply with the statute. He cannot now expect that the Court will go back and take up a case which has already been dismissed in compliance with the statute.

Motion denied.

Cited: S. v. Brumfield, 198 N.C. 613 (1c); S. v. Marion, 200 N.C. 717 (1c); S. v. Stafford, 203 N.C. 605 (1c); Powell v. Moore, 204 N.C. 656 (1c); S. v. Pike, 205 N.C. 177 (1c); S. v. Mitchell, 221 N.C. 461 (1c).