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,
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,
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,
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 *741 colored 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,
Appeal dismissed.