#### STATE v N. P. OVERTON.

Murder — Practice—Trial and Conviction — Judgment.

1. A defendant in a criminal action brought, by appeal to this Court, is not “tried” or “convicted” here.

2. Where the Court below, after the decision of this Court was certified, continued the case and rendered judgment at a subsequent term ; Held, not to be error.

MotioN for an Order'to release the defendant heard at Spring Term, 1876, of Beaufort Superior Court, before Eure, J.

The ground upon which this motion was based is sufficiently stated by Mr. Justice Beade in delivering the opinion of this Court.

His Honor overruled the motion and the defendant appealed.

*486 Attorney General,’for the State.

Mr. D. M. Garter, for the defendant.

Reade, J.

The defendant had been tried and convicted of murder in the Court below and appealed to this Court, and this-Court decided (75 N. C. 200) that there was no error in the record of the trial and conviction, and ordered its decision to be certified to the Court below, to the end that the Court below might proceed to judgment and execution. When the defendant was called to receive the judgment of the Court, he objected ; — that judgment ought not to be rendered because he had been improperly convicted and denied his constitutional right; in that, he had not been present in this Court when his case was argued and determined and had therefore not been properly convicted. This objection is founded upon ah erroneous idea of'a criminal trial, and of the power and duty of this Court in such case brought before it by appeal. The Constitution provides that a defendant in a criminal action shall be informed of the accusation against him, and shall have the right to confront the accusers and witnesses with other testimony, and shall not bo •convicted except by the unanimous verdict of a jury of good and lawful men in open Court as heretofore used Ihat is his trial. This of course implies that he shall have the right to be present. If he complains of any error in his trial, the record of the trial is transmitted to this Court.

Here, are no “ accusers,” no “witnesses,” and no “jury but upon inspection of the record this Court decides whether there was error in the trial, and without rendering any judgment, orders it decision to be certified to the Court below. It has never been understood, nor has it been the practice, that the defendant shall be present in this Court; nor is he ever “convicted” here. A second objection taken by the defendant is, that no judgment was rendered against him by the Court below at the first term after the decision of this *487•Court was certified ;■ that judgment could not be rendered after the first term. There is no force in this objection. It' was at the defendant’s request that judgment was not rendered at the first term and the case continued. And without such request, the Court had the power to suspend the judgment and continue the case until the next term. No authority is cited for these objections ; there are no precedents in practice to sustain them; and it is at least questionable whether it is not a perversion of the liberal indulgencies in favorem vites, to make them.

There is no error. Let this be certified to the end that the Court below may proceed to judgment and execution ae-.cording to law.

Per Curiam. Judgment affirmed.