#### STATE v. E. W. GATEWOOD.

(Decided December 12, 1899.)

Criminal Action — Appeal.

Appeals in forma pauperis, in criminal actions, are regulated by Tbe Code, secs. 1235 and 1236; they can be allowed only during term, and by the Judge.

Appeal, in forma pauperis, from UNION County, by a defendant in a criminal action. There was a conviction, and judgment.

The defendant attempted to appeal. Appeal dismissed for reasons stated in the opinion.

Messrs. Armjield & Williams, for appellant.

Messrs. Adams & Jerome, with the Attorney-General, for the State.

*695ClarK, J.

Appeals in forma ‘pauperis in criminal actions are regulated by The Code, secs. 1235 and 1236. They can be allowed only during’ term of court, and by the Judge; otherwise, the appeal “is a nullity.” State v. Dixon, 71 N. C., 204; State v. Gaylord, 85 N. C., 551. Neither the State nor the prosecutor can waive the requirements upon which leave to appeal in forma pauperis can be made: State v. Moore, 93 N. C., 500. “Tt is not a matter of discrotion with the Court, but it is the right of the State to have an appeal dismissed when there is a failure to- comply” with the requirements of the law. State v. Duncan, 107 N. C., 818; State v. Payne, 93 N. C., 13.

■ Appeals in forma pauperis were not originally allowed in civil causes, under The Code of Civil Procedure, at all (Mitchell v. Sloan, 69 N. C., 10), but were first provided for by chap. 60, Laws 1873-’74, (Clark’s Code, sec. 553), under which they could only be allowed, as in criminal cases, by the Judge, and during the term (Stell v. Barham, 85 N. C., 88), but, by an amendment, chap. 161, Laws 1889, in civil causes, appeals in forma pauperis can be allowed by the Judge, either at term or on affidavit filed within five dáys after court, or the Clerk may pass upon and allow such applications during term, or within ten days after its expiration.

But no amendment has been made in secs. 1235 and 1236 in regard to pauper appeals in criminal causes which are still allowable only at term time, and by the Judge. Indeed, chap. 192, Laws 1887, expressly requires the order to stay execution pending appeal to be made by the Judge.

The motion to dismiss must be allowed. State v. Harris, 114 N. C., 830.

Appeal dismissed.