#### STATE v. ROBERT STURDIVANT.

(Filed 10 December, 1941.)

Criminal Daw § 80—

An appeal will be dismissed upon motion of the Attorney-General for. failure of defendant to lile a brief, Rule of Practice in the Supreme Court No. 28, but when defendant has been convicted of a capital felony this will be done only after a careful examination of the record fails to disclose material defect.

MotioN by State to dismiss appeal for failure to file brief.

Defendant was tried before Burney, J., at tbe September Term, 1941, Superior Court of Bladen County, on bill of indictment charging him with the capital felony of murder of one Ida Mae Sturdivant. There was a verdict of guilty of murder in the first degree. Thereupon judgment that defendant suffer the penalty of death by asyphixiation, as provided by law, was entered. Defendant excepted and appealed.

Attorney-General McMullan for the State.

Pee Curiam.

Defendant, having been permitted to appeal in forma pauperis, docketed in this Court typewritten record and case on appeal but he failed to file a brief. Thereupon the Attorney-General moved to dismiss under Eule No. 28. In re Bailey, 180 N. C., 30, 103 S. E., 896; Comrs. v. Dickson, 190 N. C., 330, 129 S. E., 814.

As is the custom with us in criminal causes involving the death penalty; before acting upon the motion of the Attorney-General, we have carefully examined the record. No material defect appears therein. We have likewise considered the exceptions appearing in the case on appeal. They are without merit. The motion to dismiss is allowed.

Judgment affirmed.

Appeal dismissed.