#### STATE v. JOHN HENRY BREEZE.

(Filed 10 December, 1947.)

Criminal Law § 80b (4) —

Where defendant fails to serve his case on appeal within the time allowed, no extension of time having been allowed, the motion of the Attorney-General to docket and dismiss will be granted, but where the defendant stands convicted of a capital felony this will be done only after examination of the record proper fails to disclose error.

Appeal by defendant from Hamilton, Special Judge, at March Term, 1947, of OraNge.

Criminal prosecution tried upon indictment charging the defendant with the murder of one Agnes Wilkerson.

Attorney-General McMullan and Assistant Atiomeys-General Bruton, Rhodes, and Moody for the State.

No counsel for the defendant, appellant.

Per Curiam.

The defendant was' convicted of murder in the first degree. Sentence of death by asphyxiation was imposed. Notice of appeal was given but the appeal has not been perfected. The time allowed for serving case on appeal has expired and no extension of the time for serving such case has been granted.

The Attorney-General moves to docket and dismiss the appeal. The motion will be allowed, but, according to the rule of the Court in capital cases, we have examined the record to see if any error appears. No error is disclosed by the record. S. v. Watson, 208 N. C., 70, 179 S. E., 455.

Judgment affirmed.

Appeal dismissed.