{
  "id": 11274918,
  "name": "STATE v. JAMES PAYNE",
  "name_abbreviation": "State v. Payne",
  "decision_date": "1885-10",
  "docket_number": "",
  "first_page": "612",
  "last_page": "614",
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      "cite": "93 N.C. 612"
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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  "last_updated": "2023-07-14T16:31:05.515433+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. JAMES PAYNE."
    ],
    "opinions": [
      {
        "text": "Ashe, J.,\n(after stating the facts). The affidavit is not in compliance with the statute. When persons are convicted, and are unable to give security for costs, the statute provides that \u201c the defendant,shall have the right to appeal without giving security for costs, upon filing an affidavit that he is wholly unable to give the security for costs, and is advised by counsel that he has reasonable cause for the appeal prayed, and that the application is in good faith.\u201d The Code, \u00a71235. The words in italics are held to be essential in an affidavit of this nature, to secure against appeals merely for delay.\nIn the case of State v. Morgan, 77 N. C., 510, these words were omitted, \u00e1nd the Court said \u201ca defendant cannot appeal without security, unless he makes an affidavit that he is advised by counsel that he has a reasonable cause for appeal, and that his appeal is in good faith.\u201d The Court further said, \u201c there must be a compliance with the statute. It is not a matter of discretion.\u201d And in State v. Divine, 69 N. C., 390, it is held that it must appear by affidavit \u201cthat the defendant is advised by counsel that he has' reasonable cause for the appeal prayed for, and that the application is in good faith. Both of these essential requisites are wanting in the record before us.\u201d To the same effect is decided at this term. State v. Jones, post, 617.\nAs we have no discretion in the matter, the appeal must be dismissed.\nDismissed.",
        "type": "majority",
        "author": "Ashe, J.,"
      }
    ],
    "attorneys": [
      "Attorney General, for the State.",
      "Mr. J. F. Morpheio, for the defendant."
    ],
    "corrections": "",
    "head_matter": "STATE v. JAMES PAYNE.\nAppeals in forma pauperis.\n1. Where an affidavit to obtain an appeal without giving security for costs, in a criminal action, fails to state that the appeal is taken in good faith, it is fatally defective, and the appeal will be dismissed.\n2. Where the affidavit to obtain an appeal in forma pauperis is defective, it is not a matter of discretion with the Court, but the appellee can have it dismissed as a matter of right.\n(State v. Morgan, 77 N. C., 510; State v. Divine, 69 N. 0., 390, cited and approved).\nINDICTMENT, tried before MacRae, Judge, and a jury, at Spring Term, 1885, of the Superior Court of Ashe county.\nThe defendant was found guilty, and upon judgment being pronounced against him, appealed to this Court.\nNot being able to give the undertaking on appeal, he applied to the Court to be allowed to appeal without security, and in support of his application filed an affidavit as follows:\n\u201cJames Payne, defendant in above case, after being duly sworn, says that he is unable to give security, or make the deposit required by law, to enab'e him to appeal to the Supreme Court, and therefore asks to be allowed to appeal as a pauper.\u201d\nThe affidavit was accompanied by a certificate of counsel that the defendant\u2019s grounds of appeal were well founded.\nWhen the case was called for argument, in this Court, the Attorney General moved to dismiss the appeal on the ground that the defendant had not complied with the requirements of the statute allowing appeals in criminal cases without security for costs.\nAttorney General, for the State.\nMr. J. F. Morpheio, for the defendant."
  },
  "file_name": "0612-01",
  "first_page_order": 644,
  "last_page_order": 646
}