#### STATE v. GEORGE PEELE.

(Filed 24 September, 1941.)

Criminal Law § 80—

Where a defendant fails to file a brief on appeal, the motion of the Attorney-General to docket and dismiss will be allowed, Rule of Practice in the Supreme Court No. 28, but when the appeal is from the conviction of a capital felony this will be done only after an inspection of the record fails to disclose any error.

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

The defendant was tried before Parker, J., at the February Term, 1941, Superior Court of Bertie County on bill of indictment charging him with the capital felony of murder of one W. E. Grey. There was a verdict of guilty of murder in the first degree. Thereupon judgment that defendant suffer the penalty of death by asphyxiation as provided by law was entered.

Defendant excepted and appealed.

Attorney-General McMullan for the State.

Pee Cueiam.

The defendant, having been permitted to appeal in forma pauperis, docketed in this Court typewritten copies of the record and case on appeal, but he failed to file a brief. Thereupon the Attorney-General moved to dismiss under Rule No. 28. In re Bailey, 180 N. C., 30, 103 S. E., 986; Comrs. v. Dickson, 190 N. C., 330, 129 S. E., 726; S. v. Dawkins, 190 N. C., 443, 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 rights of the defendant were carefully safeguarded by the trial judge. The motion to dismiss is allowed.

Judgment affirmed.

Appeal dismissed.