Summary
In S. v. Bramble, 121 N.C. 603, the Court cites numerous cases in which appeals in criminal actions had been dismissed for a defect in the affidavit to appeal in forma pauperis, and reaffirmed the doctrine, which has been acted upon uniformly before and since, in S. v. Atkinson, 141 N.C. 735; S. v. Smith, 152 N.C. 842.
Summary of this case from State v. DevaneOpinion
(September Term, 1897.)
Practice — Appeal in Forma Pauperis — Affidavit.
The omission in an affidavit to appeal in forma pauperis of the averment that it is made in good faith is a fatal defect, and for such defect the appeal will be dismissed as a matter of right and not of discretion.
THE defendant was convicted on a criminal charge at September Term of CUMBERLAND Circuit Criminal Court, before Sutton, J., and a jury, and appealed in forma pauperis.
In this Court the Attorney General moved to dismiss appeal for defective affidavit.
Attorney General Walser for the State.
H. L. Cook and H. McD. Robinson for defendant.
The affidavit to appeal in forma pauperis is fatally defective, as it omits the averment that it is "made in good faith," which is required by the Code, sec. 1235. The appeal must be dismissed as a matter of right, not of discretion. S. v. Harris, 114 N.C. 830; S. v. Rhodes, 112 N.C. 856; S. v. Jackson, ib., 849; S. v. Shoulders, 111 N.C. 637; S. v. Wylde, 110 N.C. 500; S. v. Tow, 103 N.C. 350; S. v. Moore, 93 N.C. 500; S. v. Payne, ib., 612; S. v. Jones, ib., 617; S. v. Morgan, 77 N.C. 510; S. v. Divine, 69 N.C. 390.
Appeal dismissed.
Cited: S. v. Atkinson, 141 N.C. 735; S. v. Keebler, 145 N.C. 562; Honeycutt v. Watkins, 151 N.C. 653; S. v. Parish, ib., 659; S. v. Smith, 152 N.C. 842; S. v. DeVane, 166 N.C. 283.
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