
    STATE v. EMMETT GARNER.
    (Filed 2 March, 1949.)
    Criminal Raw § 80b (4) —
    Where defendant fails to file statement of case on appeal or apply for writ of certiorari within the time allowed, the appeal will be dismissed on motion of the Attorney-General, but where.defendant has been convicted of a capital felony this will be done only after an inspection of the record proper fails to show error.
    Motion by State to docket case,
    affirm judgment, and dismiss appeal.
    
      Attorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State.
    
    
      No counsel contra.
    
   Per Curiam.

At a regular term of the Superior Court of Harnett County held on the first Monday in September, 1947, it being the first day of September, 1947, for tbe trial of criminal cases exclusively, tbe defendant Emmett Garner was tried upon a bill of indictment charging bim with crime of murder in tbe first degree. There was verdict of guilty of murder in tbe first degree as charged in tbe bill of indictment, upon which judgment of death as required by law 'was pronounced by tbe court at said term of court.

From this judgment defendant gave notice of appeal to tbe Supreme Court, and was allowed to appeal in forma pauperis, that is, without giving security for costs. Defendant was allowed sixty days to prepare and serve statement of case on appeal, and tbe State was allowed sixty days thereafter to prepare exceptions thereto or statement of eountercase.

Tbe Clerk of Superior Court of Harnett County certifies, under date of 22 May, 1948, that “no statement of case of appeal to tbe Supreme Court in this case has ever been filed in this office, and . . . that no writ of certiorari in this case has been served” on bim.

Tbe Attorney-General of tbe State of North Carolina moves to docket and dismiss tbe case under Eule 17 of tbe Eules of Practice in tbe Supreme Court of North Carolina, 221 N.C. 544, at p. 551, and for affirmance of tbe judgment.

In tbe absence of apparent error upon the face of tbe record tbe motion is allowed. S. v. Watson, 208 N.C. 70, 179 S.E. 455; S. v. Brooks, 224 N.C. 627, 31 S.E. 2d 754; S. v. Nash, 226 N.C. 608, 39 S.E. 2d 596; S. v. Ewing, 227 N.C. 107, 40 S.E. 2d 600; S. v. Lampkin, 227 N.C. 621, 44 S.E. 2d 30; S. v. Little, 227 N.C. 701, 41 S.E. 2d 833; S. v. West, 229 N.C. 416, 47 S.E. 2d 712.

Appeal dismissed — judgment affirmed.  