#### STATE v. LUTHER MORROW.

(Filed 26 November, 1941.)

Criminal Law § 80—

When defendant flies no appeal bond or order allowing him to appeal in forma pauperis, and fails to make up and serve his statement of case on appeal within the time allowed, the motion of the Attorney-General to docket and dismiss under Rule 17 will be granted, but when defendant has been convicted of a capital crime this will be done only after an inspection of the record proper fails to disclose error.

MotioN by State to docket and dismiss appeal.

Attorney-General McMullan for the State.

Stacy, 0. J.

At the October Term, 1941, Union Superior Court, the defendant herein, Luther Morrow, was tried upon indictment charging him with the murder of his wife, Lottie Belle Morrow, which resulted in a conviction of “Murder in the First Degree,” and sentence of death as the law commands on such verdicts.

From the judgment thus entered, the defendant gave notice of appeal to the Supreme Court and was allowed thirty days from 17 October, 1941, to make up and serve his statement of case on appeal, and the solicitor was given twenty days thereafter to prepare and serve exceptions or eountercase. The clerk certifies that no appeal bond, no order allow*442ing the defendant to appeal in forma pauperis, and no case on appeal bas been filed in his office; that the time for perfecting the appeal has expired, and that he has been informed by defendant’s counsel “that he does not intend to perfect the appeal, but desires this record, together with the transcript of the evidence and the charge of the court, forwarded to the Supreme Court in order that the record may be reviewed before the case is dismissed.”

In the absence of any apparent error, which the record now before us fails to disclose, the motion of the Attorney-General to docket and dismiss under Rule 17 will be allowed. S. v. Page, 217 N. C., 288, 7 S. E. (2d), 559; S. v. Moore, 216 N. C., 543, 5 S. E. (2d), 719; S. v. Wil liams, 216 N. C., 740, 6 S. E. (2d), 492; S. v. Stovall, 214 N. C., 695, 200 S. E., 426; S. v. Watson, 208 N. C., 70, 179 S. E., 455.

Judgment affirmed. Appeal dismissed.