#### STATE v. WILEY BRICE.

(Filed 15 June, 1938.)

1. Criminal Law § 79—

The failure of defendant to file briefs works an abandonment of tlie assignments of error.

2. Criminal Law § 80—

When defendant lias filed no brief, tbe motion of the Attorney-General to dismiss will be allowed, Kules of Practice in the Supreme Court Nos. 27 and 28, but in a capital case, the motion will be allowed only when an examination of the record fails to disclose error.

Appeal by defendant from Bone, J., at November Criminal Term, 1937, of AlamaNce.

Motion by State to dismiss appeal of defendant.

Attorney-General McMullan for the State.

No counsel contra.

PeR CuRiAM.

The defendant was tried upon a bill of indictment charging him with the murder of one Shealey Lea, alias Shelly Lea, on 17 April, A.D. 1926. There was verdict of murder in the first degree. All the evidence tends to show that the crime was committed on the day named in the bill of indictment, and prior to 1 July, 1935, the date on which the statute, providing for death by administration of lethal gas *35became effective. Public Laws 1935, cb. 294. Judgment is tbat defendant suffer the penalty of death by electrocution. S. v. Hester, 209 N. C., 99, 182 S. E., 738; S. v. Dingle, 209 N. C., 293, 183 S. E., 376; S. v. McNeill, 211 N. C., 286, 189 S. E., 872. Defendant gave notice of appeal to the Supreme Court, and was permitted to appeal in forma pauperis. The court below ordered that the cost of appeal, including transcript of evidence, cost of mimeographing statement of case on appeal and defendant’s brief be paid by Alamance County. 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, supra; S. v. Robinson, 212 N. C., 536, 193 S. E., 701; S. v. Hadley, 213 N. C., 427, 196 S. E., 361, 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 Rules 27 and 28 of this Court as to filing briefs. This motion is allowed. S. v. Kinyon, 210 N. C., 294, 186 S. E., 368; S. v. Robinson, supra; S. v. Hadley, supra.

However, as is customary in capital cases, we have examined the record and case on appeal to see if any error appears. The record is regular. The exceptions presented are without merit. The case on appeal reveals competent evidence sufficient to sustain the verdict. The charge of the court below fully and fairly presented the case to the jury. We find no error.

Judgment affirmed and appeal dismissed.