ANIMALS AND GAME IN PARKS AND GAME

RESERVATIONS.

Sec. 21 (1890a). Protection of.

(1) It shall be unlawful for any person or persons to hunt, trap, capture, wilfully disturb or kill any animal or bird of any kind whatever, or take the eggs of any bird within the limits of Fairview Park, Albemarle, North Carolina, or any other park or reservation for the protection, breeding, or keeping of any animals, game or other birds, including buffalo, elk, deer, and such other animals or birds as may be kept in the aforesaid park, island, or any other park or reservation, by any person or persons, either in connection with the government of the United States or any department thereof, or held or owned by any private person or corporation.

(2) Any person or persons who shall hunt, trap, capture, wilfully disturb or kill any animal or bird, or take the eggs of any bird of any kind or description, or other thing kept in Fairview Park in Albemarle, North Carolina, or any other park or reservation as described in section one of this act, at any time during the year, shall be guilty of a misdemeanor, and shall be fined or imprisoned, or both fined and imprisoned, in the discretion of the court, for each and every offense. Ex. Sess. 1913, c. 26.

APPEAL.

Sec 22 (590). When taken; execution stayed, when.

The appeal must be taken from a judgment rendered out of term within ten days after notice thereof, and from a judgment rendered in term within ten days after its rendition, unless the record shows an appeal taken at the trial, which shall be sufficient, but execution shall not be suspended until the giving by the appellant of the undertakings hereinafter required.

Code, s. 549; 1889, c. 161; C. C. P., s. 300.

Sec. 23 (591). Entered on docket; case on appeal, how stated and settled; penalty on judge failing to settle.

Within the time prescribed in the preceding section, the appellant shall cause his appeal to be entered by the clerk on the judgment docket, and notice thereof to be given to the adverse party

unless the record shows an appeal taken or prayed at the trial which shall be sufficient. He shall cause to be prepared a concise statement of the case, embodying the instructions of the judge as signed by him, if there be an exception thereto, and the requests of the counsel of the parties for instructions if there be any exception on account of the granting or withholding thereof, and stating separately in articles numbered, the errors alleged. A copy of this statement shall be served on the respondent within fifteen days from the entry of the appeal taken; within ten days after such service the respondent shall return the copy with his approval or specific amendments indorsed or attached; if the case be approved by the respondent, it shall be filed with the clerk as a part of the record; if not returned with objections within the time prescribed, it shall be deemed approved; if returned with objections as prescribed, the appellant shall immediately request the judge to fix a time and place for settling the case before him; and the judge shall forthwith notify the attorneys of the parties to appear before him for that purpose at a certain time and place, within the judicial district, which time shall not be more than twenty days from the receipt of such request; and at the time and place stated, the judge shall settle and sign the case, and deliver a copy to the attorney of each party, or if the attorneys be not present, file a copy in the office of the clerk of the court: Provided, that if the judge shall have left the district before the notice of disagreement, he may settle the case without returning to the district. In settling the case, the written instructions signed by the judge, and the written requests for instructions signed by the counsel, and the written exceptions shall be deemed conclusive as to what such instructions, requests and exceptions were. If a copy of the case settled was delivered to the appellant, he shall within five days thereafter file the same with the clerk, and in case he fails to do so, the respondent may file his copy. The judge shall settle the case on appeal within sixty days after the termination of a special term or after the courts of the district shall have ended, and if the judge in the meantime shall have gone out of office, he shall settle the case as if he were still in office, and any judge failing to comply with this section shall be liable to a penalty of five hundred dollars, for the use of any person who will sue for the same.

Code, s. 550; 1889, c. 161; C. C. P., s. 301; 1905, c. 448.

CASE NOT SERVED.-The Supreme Court will not consider a case on appeal when it does not appear to have been served upon the opposing party and no case on appeal appears in the record. Lewis, 145-585; 59 S. E. 999.

ABANDONED APPEAL.-Where the defendant appeals to the Supreme Court, but pending the appeal breaks jail and flees the jurisdiction of the court, this is an abandonment of the appeal, and the appeal may be dismissed, or the case continued, or the judgment affirmed in the discretion of the court. Keebler, 145-560; 59 S. E. 872.

SERVED ONLY ON SOLICITOR.-In criminal cases the court can not authorize the case on appeal to be served on any other than the Solicitor or counsel acting as such pro tempore in his absence. Stevens, 152-840; 67 S. E. 327.

Deposit of CasH.-Where defendant attempted to appeal in forma pauperis but the order was void because not signed by the judge as required by law, he may be allowed to deposit the cash in lieu of the bond in the supreme court provided "good cause is shown," as allowed by Revisal, Sec. 593. Parish, 151-659; 65 S. E. 762.

UNSUPPORTED STATEMENT.-A statement in an assignment of error, when there is nothing in the record to support it, is only the unsupported statement of the appellant, and such assignment will not be considered on appeal. Freeze, 170-710.

AGREEMENT FOR TIME.-An agreement for an extension of time to serve cases or counter cases on appeal must be in writing, or an agreement to that effect must appear on record, and where appellee has waived any irregularity in time for appellant to serve his case he can not claim an extension of time by oral agreement for service of his counter case, when it is denied by the appellant that such an agreement was made. Black, 162-637; 78 S. E. 210.

COPY OF INDICTMENT.-The superior court has power to supply, by copy, an indictment necessary to be set out in the record on appeal to the Supreme Court which has been lost, on motion of appellant, based upon affidavits. McDraughon, 168–173.

DISMISSED. If the record has not been printed, and appellant has failed to make deposit to cover the cost of printing the appeal will be dismissed. Charles, 161-286; 76 S. E. 715.

ATTORNEY FOR PRIVATE PROSECUTOR.—Acceptance of service of statement on appeal by an attorney appearing for a private prosecutor is insufficient. Clenny, 133-662; 45 S. E. 525.

CASE NO PART OF RECORD.-The "case on appeal" is a part of the transcript on appeal, and is a narrative of such matters which took place at the trial as are pertinent to the exceptions taken. It is no part of the record proper. Matthews, 142-621; 55 S. E. 342.

EXCEPTIONS ABANDONED.-It is in the election of an appellant to abandon in this court any exceptions which out of abundant caution he may have taken below, and which upon reflection he thinks he should not press in this court. Matthews, 142-621; 55 S. E. 342.

BRIEF-EXCEPTIONS.-Where an exception is not referred to in the brief of appellant it will be taken as abandoned. Register, 133-747; 46 S. E. 21.

FACTS IN ASSIGNMENT OF ERROR.-Recitals of facts in an assignment of error will not be considered unless such facts are found by the judge and set out in the case on appeal. Dixon, 131-809; 42 S. E. 844.

CONTINUANCE-CIVIL ACTION PENDING.-An appeal in a criminal action will not be continued in the supreme court simply because a civil action for the same offense is pending in the superior court. Mehaffey, 132-1062; 44 S. E. 107.

CASE FILED BUT NOT SERVED.-A counter-case of the state simply marked "filed," with no evidence that it had ever been served on appellant, can not be considered. Freeman, 127-547; 37 S. E. 206.

LOST EVIDENCE-Where material evidence directed to be sent up as part of the case has become lost and can not be found a new trial will be ordered. Huggins, 126-1055; 35 S. E. 606.

AGREED STATEMENT-NO CORRECTION.-Where the statement on appeal is agreed to between the solicitor and counsel for defendant certiorari will not be granted to correct the case by the judge's notes of the evidence. Chaffin, 125-665; 34 S. E. 516.

APPELLANT'S STATEMENT.-Where the case is settled by the judge it is improper to send up also the appellant's statement of case. Dewey, 139-563;

51 S. E. 937.

TOO LATE.-Where the case was tried in October, 1904, and not docketed until fall term, 1905, the appeal will be dismissed, and it is no excuse that the case on appeal was not settled by the judge until after it was too late to docket at the spring term in time for the call of the district. Telfair, 139-555; 51 S. E. 911.

FROM JUDGMENT AT SUBSEQUENT TERM.-Where, after verdict against a defendant, he fails to appear that judgment may be rendered against him, and the cause is continued without judgment, he may appeal from the judgment pronounced at the next term. Black, 94-811.

APPELLANT'S DUTY ON APPEAL.-The duty of the appellant to see that his case on appeal is properly prepared and sent up under the rules is not discharged by entrusting this duty to his attorneys and paying them the necessary fees. Goodlake, 166-434; 81 S. E. 1008.

Where an appeal is taken to the refusal of the court to quash it is the duty of the appellant to see that the indictment is contained in the transcript, and when it is not he should apply to the superior court to supply it, if one convenes in time, and if not he should send to the supreme court as much of the record as could be procured, and apply for a certiorari to give him opportunity to move in the court below. McDraughon, 168–131.

BRIEF.-An assignment of error which does not appear in the brief is abandoned. Smith, 164-475; 79 S. E. 979.

FRAGMENTARY APPEAL.-Where the judge has ordered the entry to be made by the clerk of a verdict of not guilty, for a variance between the indictment and the proof, but conceiving it to be erroneous, he then, in the presence of the jury, still sitting on the case, directs the clerk to strike out the entry, and, withdrawing a juror, directs a mistrial, the order striking out the verdict of not guilty left the case exactly where it was before, the withdrawal of the juror and the order of mistrial being in the discretion of the court. Ford,

168-165.

JUDGE MUST SIGN ORDER.-Where the order allowing an appeal in forma pauperis is signed by the clerk and not by the judge the defect is jurisdietional, and the supreme court has no power to allow an amendment. Parish, 151-659; 65 S. E. 762.

EVIDENCE NOT SUFFICIENT.-An assignmnet of error that the evidence was not sufficient to be submitted to the jury will not be considered in the absence of a prayer for special instruction to that effect presented at the close of the evidence. Whitfield, 153-627; 69 S. E. 263.

EXCEPTION TO EVIDENCE.-An exception to evidence must state the testimony that this court may see and determine its effect. Williford, 91-529.

CONTINUANCE.—No appeal lies from an order continuing a cause. Vann,

84-722.

INCOMPETENCE OF WITNESS.-Where objection is made that a witness was incompetent to testify, it is not necessary to set out in the statement of case what the party offered to prove. Jim, 48-348.

BILL OF EXCEPTIONS.-The statement of case on appeal is a substitute for a bill of exceptions. Ray, 32 (10 Ired.), 29.

EVIDENCE MUST BE SENT UP.-An exception to the sufficiency of the evidence will not be considered on appeal if the evidence is not sent up. Tyson, 133-692; 45 S. E. 838.

EVIDENCE SUFFICIENT.—It is too late after verdict to raise the objection that there was not sufficient evidence to warrant the verdict. Williams, 129-581; 40 S. E. 84.

HOW CASE SETTLED FOR SUPREME COURT.-Appeals in criminal actions must be perfected, and the case for the supreme court settled as provided in civil actions. Lee, 90-652.

When appellant's case on appeal is served in time, and no exceptions or counter-case is served, it becomes the "case on appeal." Carlton, 107-956; 12 S. E. 44.

NO STATEMENT NECESSARY, WHEN.-When the ground of exception to the order of the court sufficiently appears in the record, no statement of the case on appeal is necessary. Byrd, 93-624.

JUDGE MAKING STATEMENT ON FAILURE OF APPELLANT TO SERVE CASE ON APPELLEE, EFFECT OF.-Where it appears that the appellant served no case on the appellee, but the judge makes the statement of the case on appeal, it will be presumed that he did so by consent of the parties. Crook, 91-536.

SURETY MUST JUSTIFY IN DOUBLE THE AMOUNT OF BOND.-Where the surety only justifies in the amount, and not double the amount of undertaking, the appeal will be dismissed. Roper, 94-859.

JUDGMENT AFFIRMED, WHEN.-Where there is no statement of case on appeal, no assignment of error, and no error appears on the record, the judgment must be affirmed. Brown, 106-645; 10 S. E. 870.

CASE MUST CONTAIN PRAYERS FOR INSTRUCTION AND EVIDENCE.--Where exception is taken to the refusal of certain prayers for instruction, in preparing the case for the supreme court, the prayers for instruction and the evidence bearing on them should be set out in the case. Sloan, 97-499; 2 S. E. 666. Where evidence is offered to impeach a witness, and is rejected, the case on appeal must state the testimony of the witness sought to be impeached in order to show the alleged error. Barber, 89–523.

Exceptions to the admission of evidence must state what the evidence was, that the court may see whether it was illegal. Clark, 34 (12 Ired.), 151.

An exception to the refusal to allow a question to be asked must state what was expected to be shown by the inquiry, otherwise it does not appear that any injury resulted from the exclusion of the evidence. Rhyne, 109794; 13 S. E. 943.

An exception to the rejection of evidence can not be considered when the evidence proposed is not set out in the record. Keath, 83-625.

Sec. 24 (3277). When defendant may appeal.

In all cases of conviction in the superior court for any criminal offense, the defendant shall have the right to appeal, on giving adequate security to abide the sentence, judgment or decree of the supreme court; and the appeal shall be perfected and the case for the supreme court settled, as provided in civil actions.

Code, s. 1234; R. C., c. 4, s. 21; 1818, c. 962, s. 4.