State v. Simons.

Allen, J. “One of tbe purposes of tbe writ of certiorari is to answer as a substitute for an appeal, . . . but where an appeal is pot prayed for, tbe certiorari is not a matter of course, and tbe Court will exercise discretion in regard to tbe application.” Bledsoe v. Snow, 48 N. C., 105; McConnell v. Caldwell, 51 N. C., 469. Tbe application should be made “at tbe term to which tbe appeal ought to have been taken,” “without any unreasonable delay, and tbat any such delay after tbe earliest moment in tbe party’s power to make tbe application must be satisfactorily accounted for.” Todd v. Mackie, 160 N. C., 359. It is also held in Mitchell v. Baker, 129 N. C., 63, tbat tbe petition for tbe certiorari should be made “at least at tbe call of tbe district” to which tbe appeal should have been taken. Applying these principles, tbe petition must be denied, because it appears tbat it was not filed until after tbe appeals from tbe county of Anson at tbis term were beard, and there is no allegation which shows tbat tbe petitioner was prevented from taking an appeal, or was misled, nor is there any legal excuse given for failing to file bis petition earlier. If ignorance of tbe rules of practice or inability to employ counsel could avail there would be few cases in which a petition could not be applied for. *703 Again, while the' merits are not determined upon a petition for a certiorari, it appears from the record that the application is made upon the ground that the petitioner swore falsely against another charged with the same crime, and that his claim now made that he is- innocent has no foundation unless it is found that he now swears to the truth when he says in his petition that he has heretofore committed perjury in regard to the same fact. If, however, these objections were not fatal to the application, it was held in S. v. Bryson, 173 N. C., 806, substantially overruling an earlier case, that the crime of accessory before the fact is included in the charge of the principal crime, within the meaning of sec. 3269 of the Revisal, and if so, the court could accept the plea of the defendant under the bill of indictment charging the crime of arson, and the judgment pronounced thereon is legal. The petition must be denied. Petition denied.