
    STATE v. RICHARD MAYES.
    (Filed 29 November, 1939.)
    Criminal Daw § 80—
    When defendant fails to make out and serve his statement of case on appeal within the time allowed, no agreement for extension of time having been made, the motion of the Attorney-General to docket and dismiss will be allowed, Rule of Practice in the Supreme Court, No. 17, but when defendant stands convicted of a capital crime this will be done only when no error is apparent on the face of the record.
    1ÍOTION by State to docket and dismiss appeal.
    
      Attorney-General McMullan for the State.
    
   Stacy,C. J.

At the August Special Criminal Term, 1939, Mecklen-burg Superior Court, the defendant herein, Bichard Mayes, was tried upon indictment charging him with burglarizing the home of E. A. Fowler on the night of 25 July, 1939, which resulted in a conviction of burglary in the first degree and sentence of death as the law commands upon such verdict. S. v. Morris, 215 N. C., 552, 2 S. E. (2d), 554. Prom the judgment thus entered, the defendant gave notice of appeal to the Supreme Court and was allowed 40 days from 18 August, 1939, to make up and serve bis statement of case on appeal, and tbe solicitor was given 20 days thereafter to prepare and file exceptions or countercase. Tbe clerk certifies “that tbe appeal was not perfected within tbe time provided by law and no agreement made by counsel for an extension of time to file case on appeal.” S. v. Stovall, 214 N. C., 695, 200 S. E., 426.

Tbe time for serving statement of case on appeal has expired. S. v. Watson, 208 N. C., 70, 179 S. E., 455. Appeal bond of $100 was adjudged to be sufficient, but none seems to have been given.

As no error is apparent on tbe face of'tbe record, tbe motion of tbe Attorney-General to docket and dismiss tbe appeal under Rule 17 will be allowed. S. v. Day, 215 N. C., 566, 2 S. E. (2d), 569.

Judgment affirmed.. Appeal dismissed.  