#### STATE v. JOSEPH STEVENS.

(Filed 9 March, 1910.)

Appeal and Error — Criminal Cases — Service—Solicitor—Case Remanded — Procedure.

In criminal cases the trial judge cannot authorize the case on appeal to be served upon any other than the solicitor, or counsel acting as such pro tern, in his absence; and when such *841is done a motion by tbe Attorney-General to remand tbe case for proper service will be granted. Tbe-appeal in tbis case being tbns remanded, it is continued by tbe Supreme Court, to be beard at the end of tbe docket in its regular order, unless upon motion, .after tbe return of the case on appeal, it is set for an earlier day.

Appeal by defendant from 0. H. Alien, J., at September-Term, 1909, of New HaNoveb.

Attorney-General Biclcett for tbe State.

Herbert McClammy for defendant.

PER Cubiam.

Tbe Attorney-General moves to remand tbe ease on appeal, tbat it may be served on tbe solicitor and (if objected to by bim) settled by tbe judge.

. It appears tbat tbe judge made an entry allowing tbe case on appeal to be served “on Joseph W. Little, one of tbe attorneys of record (assisting in tbe prosecution), in lieu of tbe solicitor.” Tbe defendant’s case on appeal was served on said Little, not on tbe solicitor, and no exceptions or counter-case having been tendered, tbe defendant’s case on appeal has been sent up to tbis Court. Tbe conviction is of murder in tbe first degree and there are sixty-eight assignments of error.

In S. v. Cameron, 121 N. C., 572, it was held tbat tbe case on appeal must be served on tbe solicitor and tbat service upon tbe assistant counsel is not sufficient, and tbat service on any one other than tbe solicitor is valid only when, tbe solicitor being absent, a solicitor pro tern, is acting by bis authority or by appointment of tbe judge, duly recorded; and where counsel other than tbe pro tern, solicitor (in tbe absence, from tbe trial, of tbe solicitor) has accepted service or acted in settling tbe case, tbis Court will remand for service upon tbe solicitor. Tbis was cited and approved in S. v. Chaffin, 125 N. C., 665, and S. v. Conly, 130 N. C., 684.

In S. v. Clenny, 133 N. C., 662, it was again held tbat service on or acceptance by counsel who appeared with solicitor was not valid, even though such counsel bad gone before tbe judge and there agreed upon a case, and tbe Court remanded tbe case with direction to tbe clerk to send immediately to tbe solicitor a copy of defendant’s case on appeal, to tbe end tbat tbe case should be settled, in tbe manner provided by law. Tbe Court “laid down tbe rule tbat the signature of tbe solicitor, a sworn officer, should appeal- in tbe make-up of all criminal actions on appeal, where be -is present at tbe trial.”

Tbe judge below ignored tbis rule, doubtless by inadvertence. He could not authorize service of tbe ease on appeal to be made *842upon any one other than the solicitor, or counsel acting as solicitor pro term, in the solicitor’s absence. S. v. Cameron, 121 N. C., 572.

The clerk of the court below will at once transmit a copy of the defendant’s case on appeal to the solicitor, who will within fifteen days thereafter serve on the defendant’s counsel his exceptions or counter-case, unless he accept the same. To that end, this case on appeal is remanded and this case is continued here to be heard in regular order at the end of the docket, unless upon motion, after the return of the case on appeal, it is set for an earlier day.

Motion allowed.