#### STATE v. TOM LINNEY (Alias BUFFALO).

(Filed 15 June, 1938.)

1. Criminal Law § 80—

When defendant has filed no brief, the motion of the Attorney-General to dismiss will be allowed, Rules 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.

2. Criminal Law § 58—

The trial court’s finding from the affidavits filed that the motion for a new trial for newly discovered evidence was based upon hearsay evidence, is held correct in this ease, and the motion was properly denied.

Appeal by defendant from Phillips, J., at January Term, 1938, of EoRsyth.

Judgment affirmed and appeal dismissed.

*36 Attorney-General McMuTlan and Assistant Attorney-Generals Bruton and Willis for the State.

No counsel for defendant.

Per Curiam.

This case was bere at Pall Term, 1937, and is reported in 212 N. C., 739. There the defendant appealed from judgment imposing sentence of death upon conviction of murder in the first degree. This Court found no error in the trial. Thereafter the defendant filed motion in the Superior Court of Forsyth County for a new trial on the ground of newly discovered evidence. S. v. Casey, 201 N. C., 620, 161 S. E., 81. The judge of the Superior Court, after considering the defendant’s motion and the affidavits filed in support, denied the motion, holding that the evidence was not sufficient to sustain it. Defendant again appealed to this Court, but has filed no brief. The Attorney-General moves to dismiss the appeal for failure to comply with Rules 27 and 28 of this Court. The motion of the Attorney-General must be allowed. S. v. Kinyon, 210 N. C., 294, 186 S. E., 368; S. v. Robinson, 212 N. C., 536.

However, as is customary in capital cases, we have examined the record and the affidavits filed in support of defendant’s motion, and find that the court below has correctly ruled that the new evidence is hearsay and that the affidavits offered are insufficient to justify a new trial.

Judgment affirmed and appeal dismissed.