#### STATE v. GEORGE WALTER BROOKS.

(Filed 8 November, 1944.)

Criminal Law § 80—

A capital case will be docketed and dismissed for failure to perfect appeal, on motion of the Attorney-General, after the Court has examined the record and finds no error.

MotioN by State to docket and dismiss appeal.

Attorney General McMullan and Assistant Attorneys-General Patton and Rhodes for the State.

No counsel contra.

Per Curiam.

At a regular term of the Superior Court of Mecklen-burg County held on 12 June, 1944, for the trial of criminal cases exclusively, the defendant George Walter Brooks was tried upon an indictment charging him with the statutory crime of rape. There was verdict of guilty of rape as charged in the bill of indictment, upon which judgment of death as required by law was pronounced by the court on 15 June, 1944.

From this judgment defendant gave notice of appeal to the Supreme Court, and upon affidavit and certificate in compliance with the statute, G. S.,-15-181, an order was entered on 15 June, 1944, permitting the defendant to appeal “his case in forma pauperis, without giving security for costs.” By consent, defendant was allowed sixty days in which to *628prepare and serve case on appeal, and tbe State was allowed thirty days after such service in which to file exceptions or countercase.

The clerk of said Superior Court certifies, under date of 20 October, 1944, that “no case on appeal has been filed in this office and that the time or extension of time allowed by the Court, or agreed upon by counsel, for perfecting the appeal has expired, and the appeal has not been perfected,” and that he is informed by counsel for defendant “that they do not intend to perfect the said appeal.”

The Attorney-General moves to docket and dismiss the case under Rule 17 of the Rules of Practice in the Supreme Court. 221 N. C., 544, at 551.

In the absence of apparent error upon the face of the record the motion is allowed. S. v. Watson, 208 N. C., 70, 179 S. E., 455; S. v. Robinson, 212 N. C., 536, 193 S. E., 701; S. v. Morrow, 220 N. C., 441, 17 S. E. (2d), 507; S. v. Blue, 221 N. C., 36, 18 S. E. (2d), 697; S. v. Alexander, ante, 478.

Appeal dismissed. Judgment affirmed.