#### STATE v. HUDSON ROBINSON.

(Filed 24 November, 1937.)

1. Criminal Daw § 79—

Tbe failure of defendant to file briefs works an abandonment of tbe assignments of error, except those appearing on tbe face of tbe record, wbicb are cognizable ex mero motu.

2. Criminal Daw § 80—

Where defendant fails to file briefs, tbe motion of tbe Attorney-General to dismiss must be allowed, Rules 27 and 28, but in a capital case this will be done only after an examination of the record and case on appeal discloses no error.

3. Homicide § 25—

Where there is sufficient competent evidence by tbe State to sustain, a verdict of guilty of murder in the first degree, and evidence in sharp conflict introduced by defendant, the conflicting evidence is for tbe jury, abd defendant’s motion to nonsuit is properly denied.

Appeal by defendant from Rousseau, J., at Regular Criminal June Term, 1937, of MecKleNbueg.

Motion by State to dismiss appeal of defendant.

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

No counsel for defendant.

*537WiNBORNE, J.

Tbe defendant was tried upon a bill of indictment charging him with the murder of one Albert Downing. There was verdict of murder in the first degree and judgment of death by asphyxiation. Defendant gave notice of appeal to the Supreme Court and was permitted to appeal in forma pauperis. The record and case on appeal were duly docketed in this Court, but defendant has filed no brief, which works an abandonment of the assignments of error, S. v. Hooker, 207 N. C., 648, 178 S. E., 75; S. v. Dingle, 209 N. C., 293, 183 S. E., 376; except those appearing on the face of the record, which are cognizable ex mero motu. S. v. Edney, 202 N. C., 706, 164 S. E., 23.

The Attorney-General moves to dismiss the appeal for failure to comply with Eules 27 and 28 of this Court as to filing briefs. This motion must be allowed. S. v. Kinyon, 210 N. C., 294, 186 S. E., 368.

However, as is customary in capital cases, we have examined the record and case on appeal to see if any error appears. The only assignments of error are to the refusal of the court below to grant defendant’s motion for judgment as of nonsuit. The case on appeal reveals evidence competent and sufficient to sustain the verdict. The evidence for defendant is in sharp conflict with that for the State. This presents a •case for the jury. We find no error.

Judgment affirmed and appeal dismissed.