#### STATE v. JAMES SERMONS.

(Filed 5 January, 1938.)

Criminal law § 80—

Where defendant, convicted of a capital felony and allowed to appeal in forma pauperis, fails to make out and serve his statement of case on appeal within the time allowed, he loses his right to bring up the “case on appeal” and the appeal will he dismissed on motion of the Attorney-General after an examination of the record proper discloses no error on its face.

Motion by State to docket and dismiss appeal.

Attorney-General Seawell and Assistant Attorney-General McMullan for the State.

No counsel'for defendant.

Stact, C. J.

At tbe September Term, 1937, of Forsyth Superior Court, tbe defendant herein, James Sermons, was tried upon an indictment charging him with tbe murder of one Carlile Miller, which resulted in a conviction of murder in tbe first degree and sentence of death by asphyxiation. From tbe judgment thus entered tbe prisoner gave notice of appeal to tbe Supreme Court and was allowed 40 days within which to make out and serve statement of case on appeal, and tbe solicitor was given 30 days thereafter to prepare and file exceptions or countercase, but nothing has been done towards perfecting tbe appeal, albeit tbe prisoner was allowed to appeal in forma pauperis, and tbe time for serving statement of case on appeal has now expired. S. v. Brown, 206 N. C., 747, 175 S. E., 116.

*768Having lost bis- right to bring up the “case on appeal,” S. v. Moore, 210 N. C., 686, the prisoner is in no position to resist tbe motion of the Attorney-General to docket and dismiss. S. v. Johnson, 205 N. C., 610, 172, S. E., 219; S. v. Rector, 203 N. C., 9, 164 S. E., 339. As is customary in capital cases, however, we have examined the record to see that no error appears upon the face thereof, such errors, if any, .being cognizable sua sponte. S. v. Robinson, ante, 536.

We have discovered no defect on the face of the record proper. S. v. Edney, 202 N. C., 706, 164 S. E., 23; S. v. Hamlet, 206 N. C., 568, 174 S. E., 451.

Motion allowed. Appeal dismissed.