State v. . Deyton

ClabK, J.: This is an appeal by the State upon a special verdict at Pall Term of YaNCey Superior Court October, 1895. It might readily have been docketed here at Pall Term, 1895, and should have been at the latest during Spring Term, 1896, or if the failure to do so was not the negligence of the appellant, a writ of certiorari should *882 have been asked at Spring Term, and as neither was done it is too late to docket the appeal at this Term. Rule 5 of this Court: Porter v. Railroad, 106 N. C., 478; Hinton v. Pritchard, 108 N. C., 412. The rule applies in both civil and criminal cases, and there is no reason why-public officials should not be held to due diligence as well as other people. There is no excuse shown, and there is no suggestion that the case was held back for improper motives, which would justify the Court now ordering it to be docketed to prevent a default of justice. There is no blame attaching to the Attorney General, as he could not have applied for a certiorari in ignorance of the fact' that such an appeal had been taken.' It is possible, but not probable, that the Solid;or was negligent in not directing the case sent up, or in notifying the Attorney General that it had not been, so that he might apply for a certiorari. If the Solicitor had learned in time that it had not been sent up, he could, and doubtless would, have had it done. It has been suggested here that it was the negligence of the clerk, for it is his duty to send up the judgment roll and the “ case on appeal” in twenty days after the case is filed in his office (Code, Sections 551 and 1234), and here there being no “ case on appeal ” but only the judgment roll, including the special verdict and judgment, which were filed, of course, during the term, it was the clerk’s duty to have sent the transcript up within twenty days after the court adjourned. Attention was called in State v. Hatch, 116 N. C., 1003, to the fact, which sometimes is lost sight of, that public officers are public servants, and for wilful negligence in the discharge of a public duty are liable to indictment (Code, Section 1090), except only such officials as are subject to impeachment. It is true that the clerk is not compelled to send up *883 the transcript in any civil case unless paid his jnst and legal fees therefor. (Speller v. Speller, at this term, and cases there cited), but it is otherwise as to appeals in criminal actions, both as to the defendant (whether appealing in forma pauperis or not) and the State. State v. Nash, 109 N. C., 822. The transcript sent up is very informal, but the Court, ex mero motu, could send down a certiorari to correct these defects if the appeal had been docketed in time. In this case the defendant escapes punishment for his crime (fortunately not a grave one) by the negligence of a public servant in not sending up the transcript of the record in the time required bylaw; for the only point raised by the special verdict, to-wit, the liability of a mere servant or hireling for carrying a concealed weapon on the premises of his employer, was incorrectly decided against the State by his Honor. State v. Terry, 93 N. C., 585. But the appeal having been docketed too late, the defendant, appellee, has a right to have it dismissed- Appeal Dismissed.