
    STATE v. ROY HUMPHREY.
    (Filed 28 November, 1923.)
    1. Appeal and Error — Service of Case — Settlement of Case — Discretion of Court — Extension of Time to Serve Case — Statutes.
    Before tlie amendment of 1921, C. S., sec. 643, conferred no power upon the trial judge to enlarge the statutory time for the service of appellant’s and appellee’s cases on appeal beyond that therein prescribed, and this formerly could only be done by the agreement of the parties; and the power conferred on him by the amendment is limited to his action during term, wherein the parties, being present, are put upon notice of their rights.
    2. Same — Term—Notice.
    Where the appellant has served his case on appeal within the time extended by agreement, and the appellee has served his case beyond that agreed upon, it is not within the statutory discretion of the trial judge to settle the ease thereafter, allowing appellee to file exceptions, the appellant’s ease being the proper case on appeal.
    3. Same — Districts—Counties—Statutes.
    The trial judge has no absolute authority to settle a case on appeal outside of the county or district in which it was tried, under the provisions of C. S., sec. 644, except by agreement of the parties, or when the countercase or exceptions had been served, respectively, within the time prescribed by the statute. C. S., sec. 643.
    4. Criminal Daw — Evidence — Character — Issues — Appeal and Error— Prejudice.
    The solicitor may not comment to the jury, in a criminal action, on the failure of the defendant to testify at the trial in his own behalf, or the bad character of the defendant as a substantive fact to show guilt, when the defendant had not himself put his character in evidence on the issue.
    Appeal by defendant from Long, J., at June Criminal Term, 1923, of MecKLENbubg.
    Indictment for assault witb intent to kill, and assault on a female. There was a verdict of guilty of assault on a female, with recommendation for mercy, sentence that defendant be imprisoned for twelve months in tbe county jail and assigned to work tbe roads of tbe county during said time, and defendant excepted and appealed, assigning errors.
    On tbe imposition of tbe sentence it was ordered by tbe court tbat appellant be allowed twenty days for serving 'case on appeal on tbe solicitor, and tbe solicitor be allowed twenty days thereafter to except or serve countercase. Tbe case on appeal by appellant was prepared and served on tbe solicitor witbin tbe time specified, to wit, on 21 June, 1923. Tbe countercase, containing tbe only exceptions made, was not served on appellant’s attorney until 25 July, 1923, five days after time allowed. Thereupon appellant’s case on appeal, with tbe record proper, was certified to Supreme Court and duly docketed for bearing.
    Some time after tbe service of tbe countercase by tbe solicitor, both cases were sent by him to tbe judge who bad presided at tbe trial, this apparently on 25 October, 1923, and at Fayetteville, N. C., who then undertook to settle a case On appeal, and directed tbat tbe same be filed •as tbe case, and tbat tbe clerk notify counsel on both sides, and defendant allowed five days thereafter to file exceptions.
    At tbe call of tbe cause in this Court, tbe Attorney-General suggested a diminution of tbe record, and moved tbat tbe case served by the court be docketed as tbe only correct and proper case on appeal. Motion disallowed, and cause beard and determined on case as tendered and served by appellant.
    
      Attorney-General Manning and Assistant Attorney-General Nash for the State.
    
    
      J. F. Flowers for defendant.
    
   Hoke, J.

Our general statute governing tbe settlement and service of cases on appeal (C. S., see. 643) makes provision as follows:

“Tbe appellant shall cause to be prepared a concise statement of tbe case, embodying tbe instructions of tbe judge as signed by him, if there be an exception thereto, and tbe request of tbe counsel of tbe parties for instructions if there be any exception on account of tbe granting or withholding thereof, and stating separately, in articles numbered, tbe errors alleged. A copy of this statement shall be served on tbe respondent witbin fifteen days from tbe .entry of tbe appeal taken; witbin ten days after such service tbe respondent shall return tbe copy, with bis approval or specific amendments indorsed or attached; if tbe case be approved by tbe respondent, it shall be filed with tbe clerk as a part of tbe record; if not returned with objections witbin tbe time prescribed, it shall be deemed approved.”

And in tbe decisions construing tbe section it has been heretofore held tbat tbe time fixed by this statute for settlement and service of a case could only be changed by agreement of tbe parties, and tbat tbe trial court itself was without power to change or modify the statutory period or to change or interfere with the agreement the parties may have made on the subject. Lindsay v. Knights of Honor, 172 N. C., 818; Cozart v. Assurance Co., 142 N. C., 522; Barber v. Justice, 138 N. C., 20.

And it is further held that where exceptions or a countercase have not been properly made or served within the time specified, the appellant’s case shall be deemed approved and constitute the proper case on appeal for this Court — a ruling that is in accord with the express provisions of the statute. Barrus v. R. R., 121 N. C., 504; C. S., sec. 643, and citing among other cases McNeill v. R. R., 117 N. C., 642; Forte v. Boone, 114 N. C., 176, to the effect that the failure to except or serve a countercase withiu the time required is not cured because the judge has thereafter undertaken to settle the case. .This being the position that has hitherto prevailed, the Legislature of 1921, considering that it was not well that the trial court should be without any control or power in the premises, amended this section (643) by adding thereto a proviso, as follows: “Provided, that the judge trying the case shall have the power in the exercise of his discretion to enlarge the time in which to serve statement of case on appeal and exceptions thereto or counter-statement of case.” Laws 1921, ch. 97.

In the exercise of the powers so conferred, the court in the present case fixed the time for preparation and service of appellant’s case at twenty days,, allowing twenty days thereafter for service of exceptions or countercase.

It will be noted that while the amendment .referred to allows the trial judge in his discretion to fix the time for the preparation and service of the case and countercase, this being at times necessary to the seemly and efficient disposition of the matter, it does not otherwise modify or purport to modify the statute; and, therefore, whether the time allowed be that fixed by order of court, or, in the absence of such order, by agreement of the parties or in accordance with the law, unless a counter-case is served or exceptions duly made within the time required, the case of appellant shall stand approved as the proper case on appeal. And we do not .approve the position contended for, that, the amendment of 1921 confers upon the trial judge the right at any time or place to change the time fixed upon by the statute. As a general rule, judgments and orders substantially affecting the rights of parties to a cause pending in the Superior Court at term must be made in the county and at the term when and where the question is presented, and our decisions on the subject are to the effect that, except by agreement of the parties or by reason of some express provision of law, they cannot be entered otherwise, and assuredly not in another district and without notice to the parties interested. Cox v. Boyden, 167 N. C., 321; Bank v. Peregoy, 147 N. C., 293; Parker v. McPhail, 112 N. C., 502; McNeil v. Hodges, 99 N. C., 248; Bynum v. Powe, 97 N. C., 374.

True, in section 644, C. S., the judge, under differing circumstances as therein set forth, may settle a case on appeal at any place within the district, on proper notice, and at times out of the district, but, as shown by a perusal of the section, that power does not arise to him except by agreement of the parties or when the countercase or exception had been made by appellee within the time “as prescribed.” And an order fixing the time under the amendment should, as stated, be made at the term when the question is presented, so that the parties may then be advised of their rights in the matter.

The countercase, therefore, having been tendered after the time fixed by the judge’s order, the case of appellant, being prepared and served within the time, becomes the proper case, and, in connection with the record, may alone be considered in determining the rights of the parties involved in the appeal. In that aspect it is conceded by the Attorney-General that reversible error has been shown, it appearing that on the trial the solicitor was allowed, over defendant’s objection, to make adverse comment on the fact that the defendant did not take the stand as a witness in his own behalf, and also as to the bad character of the defendant as a substantive fact tending to show guilt, when defendant had not himself put his character in evidence on the issue, both of which objections must be sustained under our statute and decisions appertaining to the subject. S. v. Traylor, 121 N. C., 674; C. S., sec. 1799.

We consider it not improper to note' that neither of these exceptions are presented in the case as settled by the careful and able judge who presided at the trial; but, for the reasons heretofore given, we are restricted to the facts as set forth in appellant’s case on appeal, and the cause has been determined on the exceptions therein presented. So considered, defendant is entitled to a new trial, and it is so ordered.

New trial.  