#### STATE v. CORNELIUS GRAHAM, Alias NEIL GRAHAM.

(Filed 7 May, 1941.)

Criminal Law § 80—

When defendant, convicted of a capital crime, is allowed to appeal in forma pawperis, but fails to make out and serve his statement of case on appeal within the time allowed, the appeal will be dismissed on motion of the Attorney-General and the judgment affirmed when the record is free from apparent error.

MotioN by State to docket case, affirm judgment, and dismiss appeal.

Attorney-General McMullan for the State.

Stacy, C. J.

At the January-Eebruary Term, 1941, Columbus Superior Court, the defendant herein, Cornelius Graham, alias Neil Graham, was tried upon indictment charging him with the murder of one Jenkins Robinson, which resulted in a conviction of murder in the first degree and sentence of death as the law commands. From the judgment thus entered, the defendant gave notice of appeal to the Supreme Court and was allowed 40 days to make out and serve his statement of case on appeal, and the solicitor was given 25 days thereafter to prepare and file exceptions or countercase.

The clerk certifies that “the time for perfecting appeal has expired and case on appeal has not been filed in this office.” S. v. Stovall, 214 N. C., 695, 200 S. E., 426. In a letter to the Attorney-General counsel for defendant states that the appeal will not be perfected. “We have decided to go to the Governor asking commutation of sentence to life imprisonment.” No bond was required as the defendant was granted the privilege of appealing in forma pauperis. S. v. Stafford, 203 N. C., 601, 166 S. E., 734.

As the record is apparently free from error, the motion of the Attorney-General will be allowed. S. v. Flynn, 217 N. C., 345, 7 S. E. (2d), 700.

Judgment affirmed. Appeal dismissed.