170 S.E. 649
Supreme Court of North Carolina
(Filed 20 September, 1933.)
Criminal Law L b —
The clerk is without authority to allow defendant’s application for appeal in forma pauperis in a criminal case where the statutory affidavit fails to aver that the application is made in good faith, or defendant’s second application, intended to correct the deficiency in the first, is made more than five months after the adjournment of the term.
APPEAL by defendants from Alley, J., at February Term, 1933, of BUNCOMBE.
Criminal prosecution tried on indictment charging the defendants with conspiracy to rob.
The case was tried at the February Term, 1933, Buncombe Superior Court, which resulted in conviction and judgment of twelve months on the roads against each of the defendants. Notice of appeal given in open court. Time allowed for preparing statement of case on appeal. Appeal bond fixed at $100.00.
Thereafter, on 7 March, 1933, the clerk of the Superior Court, on certificate of counsel and affidavit, which failed to contain averment that the “application is in good faith,” entered an order purporting to allow the defendants to appeal in forma pauperis.
More than five months later, 18 August, 1933, the defendants undertook to cure the defect in their affidavit of insolvency by filing new application for permission to appeal without giving security for costs. This application was likewise granted.
Page 177
Attorney-General Brummitt and Assistant Attorneys-General Seawell and Bruton for the State.
George F. Meadows for defendants.
STACY, C. J.
Both orders of the clerk, purporting to allow the defendants to appea in forma pauperis, were improvidently entered: The first for want of sufficient affidavit to support it (S. v. Martin, 172 N.C. 977, 90 S.E. 502); the second for want of authority to allow it at the time. Powell v. Moore, 204 N.C. 654; S. v. Stafford, 203 N.C. 601, 166 S.E. 734.
The Court is without jurisdiction to entertain the appeal. Powell v. Moore, supra.
Appeal dismissed.
784 S.E.2d 607 (2016) 246 NC App. 438 Christopher HAYES, Plaintiff, v. Scott WALTZ, Defendant. No.…
212 N.C. 305 (1937) Nov. 3, 1937 Supreme Court of North Carolina THE NATIONAL COUNCIL, JUNIOR…
721 S.E.2d 736 CAMBRIDGE SOUTHPORT, LLC, a North Carolina Limited Liability Company, Plaintiff–Appellee, v. SOUTHEAST…
720 S.E.2d 829 STATE of North Carolina v. John Donald MATTHEWS. No. COA11–356. Court of…
720 S.E.2d 879 Sheila COFFEY, Administrator for the Estate of Dennis H. Barber, Sr., Deceased…
720 S.E.2d 820 STATE of North Carolina, v. Christopher Bernard HAMMONDS, Defendant. No. COA11–271. Court…