It аppears that the defendant was without counsel when he wаs convicted and sentenced on the charge of breаking and entering, at the March Term 1956 of the Superior Court of Wake County. There is no showing that the appointment of defense counsel was essential to a fair trial in the Superior Court, or that the appointment of counsel was requested.
S. v. Hackney,
There is no statutory requirement in this jurisdiction that indigent defendants not accused of capital felonies must have court appointed counsel. S
v. Hedgebeth,
A defendant has the constitutional right to be reprеsented by counsel and to have counsel assigned, if requestеd, when the circumstances are such as to show appаrent necessity for counsel to protect his rights. But in the absence of a request therefor, the propriety of providing сounsel for a person accused of an offense lеss than a capital felony, rests in the sound discretion of the triаl judge.
S. v. Hedgebeth, supra; In re Taylor,
The fact that Judge Hobgood ordered the sentence impоsed at the March Term 1956 into effect at the May Term 1956, after finding аs a fact that the defendant had not served his case on appeal within the time allowed by the court, did not prevent the defendant from having his appeal docketed in the Supreme Court for review of the record proper. But since thе defendant did not request the appointment of counsel, аnd did not cause his appeal to be docketed in ordеr that it might be heard on the record proper, nor apply for a writ of
certiorari
at the Fall Term 1956, a judge of the superior court wаs thereafter without power to enlarge the time for serving сase on appeal.
S. v. Walker,
The present case demоnstrates the necessity for the strict enforcement of our rules relating to appeals. For example, the defendant in this case waited approximately twenty months before raising any *321 objection to his trial and conviction or to the judgment imрosed. Then when judgment was purportedly arrested on 13 November 1957, and counsel was appointed for him and he was given twenty dаys in which to serve his case on appeal, there is nothing before us to indicate that he made any effort to prepare or serve such case. Hence, it would seem clear that if the State had not applied to this Court for a writ of certiorari tо have the order of Judge Burgwyn reviewed, the matter would not now bе before us.
A careful review of the record propér reveals no prejudicial error on its face. Therefore, the order of Judge Burgwyn is held to be ineffective to arrest the оriginal judgment. It will, therefore, remain in full force and effect as entered at the March Term 1956. However, the defendant should be givеn credit on his sentence for any time spent in the Wake County jail since the entry of the order purporting to arrest the judgment.
The necessity for the enforcement of our rules governing appeals in no way constitutes an encroachment on the rights of a defendant which come within the purview of our Post Conviction statute, Chapter 1083, Session Laws of 1951, codified as G.S. 15-217 through and including G.S. 15-222, or the right to petition this Court for a writ of certiorari to review orders entered in a habeas corpus proceeding.
The order of Judge Burgwyn is
Reversed.