#### STATE v. EMPIE BALDWIN.

(Filed 25 May, 1938.)

Criminal Daw §§ 73a, 80 — Appeal in this case dismissed for failure of defendant to serve statement of case on appeal within time allowed.

When defendant, convicted of a capital crime, gives notice of appeal, but it appears from certificate of the clerk after expiration of the time allowed for service of statement of case on appeal, that nothing has been done toward perfecting the appeal, the motion of the Attorney-General to docket and dismiss will be allowed, nothing appearing on the face of the record to defeat the motion.

Seawell, J., took no part in the consideration or decision of this case.

MotioN by State to docket and dismiss appeal.

Attorney-General McMullan for the State.

Stacy, C. J.

At tbe January Term, 1938, Columbus Superior Court, tbe defendant Empie Baldwin, alias Eppie Baldwin, was tried upon an indictment charging bim witb rape, wbicb resulted in conviction of the capital felony and sentence of death. From this judgment, tbe defendant gave notice of appeal and was allowed tbe statutory time to serve statement of case, wbicb time has expired, and tbe clerk certifies “that nothing has been done towards perfecting tbe appeal, and tbe time for statement of case has expired.” S. v. Watson, 208 N. C., 70, 179 S. E., 455. Accordingly, tbe Attorney-General has moved to docket and dismiss tbe appeal under Rule 17, as tbe case was due to be beard on Tuesday, 3 May, 1938, at tbe call of tbe docket from tbe Eighth District, tbe district to which tbe appeal belongs. S. v. Moore, 210 N. C., 459, 187 S. E., 586. Nothing appears on tbe face of tbe record to defeat tbe motion, hence it must be regarded as well taken and allowed. S. v. Robinson, 212 N. C., 536.

Judgment affirmed. Appeal dismissed.

Seawell, J., took no part in tbe consideration or decision of this case.