83 S.E. 181 | N.C. | 1914
This is a motion to dismiss the appeal because of the insufficiency of the transcript. *194
The defendant was tried in the Superior Court upon an indictment duly found, and upon conviction was sentenced to serve eight months upon the county roads. Since the trial the bill of indictment has been lost, without fault, so far as the record discloses, upon the part of the defendant, and therefore is not a part of the transcript. The defendant has not made any effort to have the indictment supplied in the Superior Court, nor has he moved here for a certiorari.
There was a motion to quash the indictment, which was overruled, and there are certain exceptions to the charge of the court appearing in the case on appeal. An inspection of the indictment is necessary in the consideration of the motion to quash, and also in order that we may pass upon the pertinency of the exceptions to the charge, and the question is therefore presented, upon the motion to dismiss, as to whose duty it is to supply the defect in the transcript.
In cases of this character the jurisdiction of this Court is not original, but appellate, and we are confined to the alleged errors in the case on appeal or those appearing on the face of the transcript of the record.
The presumption is that the judgment of the Superior Court is correct, and the burden is on the appellant to show errors. As far back asS. v. Butts,
It therefore appears to be well settled that it was the duty of the defendant to see that the indictment was a part of the transcript, and if lost, he ought to have applied to the Superior Court to supply it, or if no court convened in the county of Sampson prior to the time of docketing the transcript here, he ought to have sent to this Court as much of the record as could be procured, and then applied to this Court for a certiorari, in order to give him an opportunity to move in the Superior Court. He has done neither, and has offered no excuse for his laches.
The power of the Court to supply an indictment which has been lost accidentally or otherwise upon motion based upon affidavits is simply the power to make the record speak the truth, which is inherent in courts of common-law jurisdiction. The refusal to exercise this power would encourage negligence in the custodian of papers and criminality in those interested in abstracting the indictment from the files.
If a judgment in a civil action is lost before being recorded, it may be supplied in this way, and there is no special sanctity about an indictment which exempts it from the rule prevailing as to other parts of a record. InMount v. State,
"It was not indispensable to the sentence that the original indictment should be before the Court. If lost or destroyed by accident, or by the fraud or design of the plaintiff in error, or stolen by him or another, and the prosecution were not in fault, its place might have been supplied by a copy like any other record or pleading," and this was cited with approval in S. v. Rivers,
And to the same effect, Clark's Crim. Procedure, sec. 430, and (134) the same doctrine was applied to information in Klein v. State,
The motion to dismiss is therefore allowed, and
Appeal dismissed.
Cited: Schwarberg v. Howard,