#### STATE v. LEWIS MOODY.

(Filed 17 March, 1943.)

Criminal Daw § 80—

When defendant fails to serve his statement of case on appeal within the time allowed, the motion of the Attorney-General to docket and dismiss will be granted, but when the defendant has been convicted of a capital felony this will be done only after inspection of the record fails to disclose error.

Attorney-General McMullan for the State.

Per Curiam.

Tbe defendant was tried before bis Honor, R. D. Nixon, Special Judge, and a jury, at tbe August Term, 1942, of Northampton Superior Court upon a bill of indictment charging him with tbe murder of John Arthur Kee, and was convicted of murder in tbe first degree. Thereupon, be was sentenced to death by asphyxiation, as provided by law; and from tbis judgment, be gave notice of appeal to tbe Supreme Court.

Tbe case on appeal was not docketed here within tbe time prescribed under tbe Rules of Court, and tbe defendant has filed no brief.

Thereupon, tbe Attorney-General moved to dismiss tbe appeal for failure to docket tbe same and send up tbe transcript as required by Rule 17, and for not having filed a brief as required under Rule 28.

¥e have carefully examined tbe record, and find therein no error. S. v. Watkins, 101 N. C., 702, 8 S. E., 346. Tbe motion of tbe Attorney-General is, therefore, allowed.

Tbe judgment of tbe court below is affirmed and tbe appeal is dismissed. S. v. Watson, 208 N. C., 70, 179 S. E., 455.

Judgment affirmed. Appeal dismissed.