#### STATE v. JAMES SHAW.

(Filed 7 May, 1941.)

Criminal Law § 80—

When defendant, convicted of a capital crime, is allowed to appeal in forma pauperis, but fails to make out and serve bis 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 ease, 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, James Shaw, was tried upon indictment charging him with the murder of one James Freeman, which resulted in a conviction of “first degree murder” 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 within which to prepare 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 no case on appeal has been filed in this office.” In a letter to the Attorney-General he states that counsel for the defendant “has advised me that he does not intend to file case on appeal.” No bond was required as the defendant was allowed to appeal in forma pauperis.

As no error appears on the face of the record, the motion of the Attorney-General will be allowed. S. v. Watson, 208 N. C., 70, 179 S. E., 455.

Judgment affirmed. Appeal dismissed.