State v. Simons.State v. Simons.
- Reporters:
- , ,
- Before:
- Allen
“One of tbe purposes of tbe writ of certiorari is to answer as a substitute for an appeal, . . . but where an appeal is pot prayed for, tbe certiorari is nоt a matter of course, and tbe Cоurt will exercise discretion in regard tо tbe application.” Bledsoe v. Snow, 48 N. C., 105; McConnell v. Caldwell, 51 N. C., 469.
Tbe application should be made “at tbе term to which tbe appeal оught to have been taken,” “without any unreasonable delay, and tbat any suсh delay after tbe earliest moment in tbe party’s power to make tbe application must be satisfaсtorily accounted for.” Todd v. Mackie, 160 N. C., 359.
It is also held in Mitchell v. Baker, 129 N. C., 63, tbat tbe petition for tbe certiorari should be mаde “at least at tbe call of tbе district” to which tbe appeal should have been taken.
Applying thesе principles, tbe petition must be denied, because it appeаrs tbat it was not filed until after tbe apрeals from tbe county of Anson at tbis tеrm were beard, and there is no allegation which shows tbat tbe petitioner was prevented from taking an aрpeal, or was misled, nor is there any legal excuse given for failing to file bis petition earlier.
If ignorancе of tbe rules of practice оr inability to employ counsel cоuld avail there would be few cases in which a petition could not be applied for.
*703 Again, while the’ merits are not determined upon a petition for a certiorari, it appears from the rеcord that the applicatiоn is made upon the ground that the petitioner swore falsely against another charged with the same crime, and that his claim now made that he is- innocent has no foundation unless it is found that hе now swears to the truth when he says in his petition that he has heretofore сommitted perjury in regard to the samе fact.
If, however, these objections were not fatal to the application, it was held in S. v. Bryson, 173 N. C., 806, substantially ovеrruling an earlier case, that the сrime of accessory before the fact is included in the charge оf the principal crime, within the meаning of sec. 3269 of the Revisal, and if so, the court could accept the plea of the defendant under the bill of indictment charging the crime of arson, and the judgment pronounced thereon is legal.
The petition must be denied.
Petition denied.