#### STATE v. MELVIN NELSON.

(Filed 18 September, 1946.)

Criminal Law § 80b (4) —

Where a defendant convicted of a capital felony fails to file case on appeal in the Superior Court, the motion of the Attorney-General to docket and dismiss, made after expiration of time agreed for perfecting the appeal and any extension of time which may have been granted, will be allowed after a careful inspection of the record proper fails to disclose ei’ror.

Appeal by defendant from Clement, J., at October Term, 1945, of BlCHMOND.

Attorney-General McMullan and Assistant Attorney-General Moody for the State.

No counsel contra.

Per Curiam,

Tbe defendant was convicted at October Term, 1945, Ricbmond County Superior Court, of murder in tbe first degree, and sentence of death pronounced upon bim in accordance witb law. He gave notice of appeal to tbe Supreme Court, but no case on appeal bas been docketed in tbis Court, and no case on appeal filed in tbe office of tbe Clerk of tbe Superior Court of Bicbmond County. Tbe time agreed upon by counsel for perfecting tbe appeal, and any extension of time wbicb may bave been granted, bas expired, and tbe Clerk of tbe Superior Court of Bicbmond County certifies that counsel for tbe defendant informs bim that be does not intend to perfect tbe appeal.

Thereupon, tbe Attorney-General bas caused tbe record proper to be filed in tbis Court, and moves tbe Court that tbe case and record be docketed, and tbe appeal dismissed under Rule 17 of the Rules of Practice of this Court.

We bave carefully examined tbe record filed in tbis case and find no error therein. For tbe causes stated, tbe motion of tbe Attorney-General is allowed, tbe appeal is dismissed, and tbe judgment of tbe lower court is affirmed. S. v. Watson, 208 N. C., 70, 179 S. E., 455; S. v. Johnson, 205 N. C., 610, 172 S. E., 219; S. v. Goldston, 201 N. C., 89, 158 S. E., 926; S. v. Hamlet, 206 N. C., 568, 174 S. E., 451.

Appeal dismissed.

Judgment affirmed.