#### STATE v. HEDRICK DeVANE.

(Filed 1 April, 1914.)

Appeal and Error — Homicide—Escape—Filing Brief — Rules of Court.

When an appellant escapes pending his appeal to this Court, the Court in its discretion will either dismiss the appeal or affirm the judgment or continue the case. It can make no difference that the appellant is convicted of a capital felony. That entitles him to no special privileges.

Appeal by defendant from Allen, J., at October Term, 1913, of SAMPSON.

Attorney-General Bichett and Assistant Attorney-General Calvert-for the State.

No counsel for the defendant.

Clark:, C. J.

Tbis is a conviction for murder in tbe first •degree. When tbe case was called for argument, counsel wbo bad formerly represented tbe prisoner stated tbat bis client bad ■escaped jail, and tbat be would not file any brief for bim.

Tbis case stands on tbe same basis as any other. - Tbe fact tbat tbe prisoner bas been found guilty of a capital offense gives bim no special privilege or claim to consideration over any other litigant. Tbe presumption of law is tbat tbe trial below was •correct. No appellant is entitled to bave bis case reviewed •except by following tbe method prescribed by law and tbe rules ■of tbe Court. If tbis appellant bad not entered bis appeal within ten days, or if be bad not filed bis bond or obtained leave to appeal in forma pauperis, or if be bad not docketed bis transcript in due time, or by bis laches bad failed to bave tbe case settled by tbe judge: in any of these cases tbe appeal would be dismissed or other appropriate action taken, as in all other cases. Tbe fact tbat be bas withdrawn himself from the jurisdiction of tbe court by flight puts bim in no better condition.

In S. v. Jacobs, 107 N. C., 772, tbe appellant bad been convicted of murder in tbe first degree. When tbe case was called, *282be bad escaped, but tbat did not appear, and tbe court affirmed tbe judgment. After bis recapture, bis counsel moved tbe Court to take up tbe record and to consider tbe exceptions. Tbis tbe Court refused to do, witb a very full discussion by Avery, J., of tbe authorities. It was beld tbat tbe principle tbat “persons charged witb crime have tbe right to be present at their trial, to be informed of tbe accusation against them, to confront their accusers, and to have tbe aid of counsel, is guaranteed by tbe Constitution, which right cannot be waived in capital cases, extends only to tbe court which tries tbe facts, where tbe accused is presumed, on account of bis peculiar knowledge, to be able to conduct, or assist in tbe conduct of, bis defense. It does not prevail in tbe appellate court, which has jurisdiction only to-review alleged errors of law on tbe trial below. Hence, when one who has been convicted appeals, and afterwards escapes, tbis Court may, in its discretion, proceed witb tbe bearing of tbe exceptions, dismiss tbe appeal or retain tbe cause on tbe docket to await tbe possible but not probable return of tbe fugitive, and tbat any judgment it may pronounce will be valid, for it is not required tbat tbe appellants should be present in tbe appellate- court.” Tbat case has been repeatedly affirmed since, see Anno. Ed.

In S. v. Anderson, 111 N. C., 689, which was also a conviction for murder in tbe first degree, tbe Court again affirmed tbe doctrine tbat tbe prisoner having made bis escape, tbis Court, in its discretion, will either dismiss tbe appeal or bear it or continue it, and upon motion of tbe Attorney-General, tbe appeal was dismissed.

In S. v. Cody, 119 N. C., 908, which was another conviction for a capital felony and 'an escape, tbe Court reaffirmed tbe above ruling, and dismissed tbe appeal.

In S. v. Dixon, 131 N. C., 808, which was another conviction for murder in tbe first degree, tbe Court reaffirmed tbe above authorities and affirmed tbe judgment, saying: “One who thus dismisses himself abandons bis appeal and has no ground to invoke a. review of tbe trial by tbe appellate court.”

*283 Id. S. v. Moses, 149 N. C., 581, the Court said: “It appearing that the defendant has broken jail and is still at large, the appeal is dismissed. S. v. Jacobs, 107 N. C., 772; S. v. Keebler, 145 N. C., 560.” In S. v. Keebler, 145 N. C., 560, the Court dismissed the appeal, saying: “We will not deal with a. defendant who is in the woods.”

In S. v. Jacobs, 107 N. C., 772, Avery, J., among many other eases, quoted from Waite, C. J., in Smith v. United States, 94 U. S., 97, as follows: “It is clearly within our discretion to refuse to hear a criminal case in error unless the convicted party suing out the writ is where he can be made to respond to any judgment we may render. . . . If we affirm the judgment, he is not likely to appear to submit to his sentence. If we reverse it and order a new trial, he will appear, or not, as he may consider most for his interest.”

In S. v. Keebler, supra, the Court said: “No court will ordinarily decide a moot point, a mere abstraction; and to cumber the docket will ordinarily be useless, leading merely to a dismissal of the appeal at some future term, as in S. v. Cody, supra.” In both that case and in S. v. Jacobs, supra, there are numerous citations from other States showing that this is the general practice.

There are also numerous decisions showing that there is no distinction as to the procedure in this Court between appeals in criminal and in civil cases. In S. v. Spivey, 151 N. C., 676, it is said: “Exceptions appearing of record and not mentioned in the brief are deemed abandoned on appeal in criminal as well as in civil actions.” In S. v. Bramble, 121 N. C., 603, the Court cites numerous eases in which appeals in criminal actions had been dismissed for a defect in the affidavit to appeal in forma pauperis, and reaffirmed the doctrine, which has been acted upon uniformly before and since, in S. v. Atkinson, 141 N. C., 735; S. v. Smith, 152 N. C., 842. In S. v. Councill, 129 N. C., 511, the Court held: “A person convicted of a capital felony is not prejudiced by the fact that the Supreme Court renders a per curiam opinion affirming the conviction.” This case has been cited and approved since, see Anno. Ed.

*284"We have, however, carefully reviewed the exceptions on the trial below, and find no error that was prejudicial to the prisoner. He was evidently well informed as to the merits of his case, and'did not care to abide the action of this Court. The judgment is

Affirmed.