No appal lies for a defendant in a criminal action except from a judgment upon conviction, a plea of guilty, or some judgment against him in its nature final. Railroad Co., 169-295.

DOCKETING. The statutes and rules of the supreme court requiring docketing of appeals can not be varied, either in civil or criminal cases, under agreement with solicitor to extend time for appellant to docket his appeal. When these requirements can not be complied with the appellant must docket the record in the supreme court, and apply to the court for a certiorari. Trull, 169-363.

NO JURISDICTION.-An oral motion to dismiss for want of jurisdiction in the inferior court may be made for the first time in the supreme court, but the position should be taken in the brief. Tate, 169-373.

SURETY MAKING MARK SUFFICIENT.-An undertaking executed by a surety, who simply makes his cross-mark and justifies before the clerk, is sufficient. Byrd, 93-624.

CASE REMANDED, WHEN.-When the transcript fails to show that a court was held by a judge at the time and place prescribed by law, that a grand jury was drawn and sworn and presented the indictment, or that the plea of not guilty was entered, the case will be remanded for a more perfect record. Farrar, 103-411; 9 S. E. 449.

WITHDRAWAL OF APPEAL.-Appeals in misdemeanors may be withdrawn by counsel for defendant, with the consent of the attorney-general, but in felonies it must appear affirmatively that the prisoner advisedly assents to and desires the withdrawal of his appeal. Leak, 90-655

After appeal to the supreme court, the appeal can not be withdrawn when the attorney-general opposes the application, and no good cause is shown why it should be granted. Brewer, 98-607; 3 S. E. 819.

STATUTE REPEALED PENDING APPEAL.—If, pending an appeal in a criminal case, the statute authorizing the indictment is repealed, judgment will be arrested. Nutt, 61 (Phil. Law), 20.

SECOND APPEAL FOR SAME CAUSE.-Where defendant appealed and the judgment was affirmed by the supreme court, and the trial judge, on receiving the certificate of the supreme court, imposed the same sentence which had been imposed before, a second appeal, without assigning any error or showing any new facts, will be dismissed. Following State v. Speaks, 95-689, Miller, 97-450.

APPEAL VACATES JUDGMENT.-An appeal to the supreme court vacates the judgment, whether it be imprisonment or fine. Miller, 94-908.

EXCEPTIONS MUST BE SPECIFIC.-The exception of the appellee to the appellant's statement on appeal should be specific, and where, in case the appellee's statement is sent up, they are so general as to leave the case indefinite, it will be remanded to the court below in order that it may be settled by the judge. King, 119-910; 26 S. E. 261.

RES ADJUDICATA.—While an affirmance of a judgment on appeal is necessarily an adjudication upon every assignment of error and of every matter which might have been urged in arrest of judgment, yet, where a new trail is granted the judgment is res adjudicata only upon the errors ruled upon in the opinion though other errors were assigned on the appeal. Perry, 1221018; 29 S. E. 384.

NO APPEAL FROM CRIMINAL TO SUPREME COURT.-No appeal lies to the supreme court from a criminal or other inferior court. Hanna, 122—1076; 29 S. E. 353.

JUDGE'S NOTES NOT ACCESSIBLE.-In the absence of any allegation or ground to the contrary, a case on appeal certified by the judge will be taken as correct, where the notes of the evidence and charge were not accessible in making up the case. Journigan, 120-568; 26 S. E. 696.

COUNSEL FOR PRIVATE PROSECUTOR.—Counsel for a private prosecutor, who aids the solicitor in the trial of a criminal case, has no authority to accept a statement of case on appeal. Cameron, 121–572; 28 S. E. 139.

REPRESENTATIVE OF SOLICITOR.-Where the solicitor is not present at the trial of a criminal case, the case on appeal may be served on the attorney who represents him officially, with the sanction and approval of the court, and, in such case, the appointment of such representative must be made a matter of record and appear in the transcript of the record on appeal. Cameron, 121-572; 28 S. E. 139.

NO EVIDENCE.-An exception that there is no evidence sufficient to go to the jury is too late when taken after verdict. Wilson, 121-650; 28 S. E. 416. AGREEMENT AS TO THE EVIDENCE.-Where the solicitor agrees that the judge's notes of the testimony shall be a part of the record on appeal and such notes are incomplete, but are the only record of the evidence, he is bound by the insufficiency of the evidence shown thereby. Wilson, 121-650; 28 S. E. 416.

FROM FINE.—A person not required to serve on the jury may appeal from a judgment imposing a fine for not serving. Williams, 18 (1 D. & B.), 373. FROM CRIMINAL TO SUPERIOR COURT.-The appeal from a criminal court to the superior court should contain a concise statement of the case as in appeals from the superior to the supreme court. Hinson, 123-755; 31 S. E. 854.

The superior court, on appeal from the circuit criminal court, reviews only questions of law passed upon by the criminal court. The defendant is not entitled to a trial de novo in the superior court. Hinson, 123-755; 31 S. E. 854.

TIME EXPIRED.-Where eleven days elapse after the adjournment of the court all assignments of error, other than those to matters of record, will be disregarded. Perry, 122-1018; 29 S. E. 384.

LANGUAGE OF INSTRUCTIONS NOT REQUIRED.-Where the instructions asked for are given in substance and effect, no exception will lie because they are not given in the language of the request. Mills, 116-992; 21 S. E. 106. APPEAL DISMISSED ON ESCAPE.-Where, pending an appeal of a prisoner convicted of a capital felony, he makes his escape, the supreme court has power to dismiss the appeal, or hear, or continue it. Anderson, 111-689; 16 S. E. 316.

ENTIRE CHARGE NOT SENT.-Where the entire charge is not sent up it will be presumed that it is correct, except in those particulars in which errors are assigned in the case on appeal. Cox, 110-503; 14 S. E. 688.

Where the case states that the judge recapitulated the evidence to the jury an assignment of error that the court did not recapitulate the evidence will not be considered. Hart, 116-976; 20 S. E. 1014.

DEMURRER SUSTAINED-A demurrer to a bill for a misjoinder raises a question of law, and if the demurrer be sustained an appeal by the state lies. Harris, 106-682; 11 S. E. 377.

COSTS OF TRANSCRIPT.-The clerk has no right to demand the costs of the transcript to be paid before sending up the case on appeal, whether an appeal bond is filed or the appeal is in forma pauperis. The prohibition against requiring fees in advance in criminal actions embraces all services. Nash, 109-822; 13 S. E. 733.

WITHDRAWAL IN MISDEMEANORS.-In misdemeanors an appeal may be withdrawn by counsel with the consent of the attorney-general, but in felonies it must appear affirmatively that the prisoner advisedly consents to the withdrawal of his appeal. Leak, 90–655.

APPEAL WITHDRAWN ON ACCEPTANCE OF COMMUTATION OF SENTENCE.-Where the governor commutes a sentence of death to imprisonment for life in the penitentiary, and the prisoner accepts such commutation, and in pursuance of the same goes to the penitentiary pending his apepal to the supreme court, and, on his case being called, he exhibits his commutation and prays to be allowed to abandon his appeal, to which prayer no objection is made by the attorney-general, the appeal will be dismissed. Mathis, 109-815; 13 S. E.

917.

Sec. 25 (3276). When state may appeal.

An appeal to the supreme court may be taken by the state in the following cases, and no other. Where judgment has been given for the defendant

1. Upon a special verdict.

2. Upon a demurrer.

3. Upon a motion to quash.

4. Upon arrest of judgment. Code, s. 1237.

VERDICT OF NOT GUILTY ORDERED.-Where a verdict of not guilty was directed to be entered because no affidavit accompanied the warrant sworn out before a mayor, the state can not appeal. Savery, 126-1084; 36 S. E. 22.

CASE REMANDED.-The state can not appeal from an order of the superior court remanding a case to a criminal court. Railway Co., 126-1078; 35

S. E. 619.

MOTION TO QUASH.-Where the state appeals the defendant can renew in the supreme court a motion to quash which was made and refused in the court below. Railway, 125-670; 34 S. E. 527.

HABEAS CORPUS.-No appeal for the state lies from a judgment releasing a prisoner on habeas corpus. Miller, 97-451; 1 S. E. 776.

MARKING ONE AS PROSECUTOR.-The state has no right to appeal from the refusal of the court to mark one as prosecutor of record. Moore, 84-724.

FINDING OF COURT CONCLUSIVE.-Where the court finds as a fact that the prosecution was frivolous or malicious the finding is conclusive, and the prosecutor can not appeal. Lance 109-789; 14 S. E. 110.

NO APPEAL FROM ORDER SETTING VERDICT ASIDE.-Where the jury return a verdict of guilty, subject to the opinion of the court upon a case agreed, the court has no power to set the verdict aside, and direct a verdict of not guilty, but where such order is made the state has no appeal. Padgett, 82—

544.

APPEAL FROM ORDER ARRESTING JUDGMENT.-Where an appeal by the state from an order arresting judgment, is dismissed by the supreme court on the ground that the record shows the appeal to have been taken from an order granting a new trial, it is not error for the court below to refuse to pronounce judgment upon the verdict, though on receiving the certificate from the supreme court the court below corrects the record so as to show a verdict of guilty and judgment arrested, since the order arresting judgment still remains unreversed. Keeter, 82-547.

CASE REMANDED.-The state can not appeal from à ruling of the superior court remanding a case to an inferior court for the imposition of a slighter sentence. Davidson, 124-839; 32 S. E. 957.

The state can not appeal from a ruling of the superior court that a defendant is entitled to a trial de novo on appeal from a criminal court to the superior court. Hinson, 123-755; 31 S. E. 854.

The state may appeal from an order quashing a bill of indictment. Lancaster, 169-284.

The state has no right of appeal from the action of the court in striking out a plea of guilty and entering erroneously a plea of not guilty and discharging the defendant, as no jurisdiction thereof is given the supreme court by the statute. Branner, 149-559; 63 S. E. 169.

The state can not appeal when the court sustains defendant's demurrer to the state's evidence. Moody, 150-847; 64 S. E. 431.

Sec. 26 (3278). Defendant may appeal without security for costs.

In all such cases of conviction in the said courts, the defendant shall have the right to appeal without giving security for costs, upon filing an affidavit that he is wholly unable to give security for the costs, and is advised by counsel that he has reasonable cause for the appeal prayed, and that the application is in good faith. Code, s. 1235; 1869-70, c. 196, s. 1.

AFFIDAVIT.-An affidavit that defendant is unable to give bond or security and has no property whatever, and "that he is advised by his counsel to appeal," is fatally defective for failure to state that he is advised by his counsel that he has "reasonable cause for the appeal prayed, and that the application is made in good faith." Moore, 93-500.

If the affidavit fails to state that the appeal is taken in good faith, the appeal will be dismissed. Payne, 93-612.

In such case the court has no discretion, but the appellee can have the appeal dismissed as a matter of right. Ib.

Where the affidavit is not sent up, but the substance is set forth in the order allowing the appeal, from which it appears that it was fatally defective, a presumption that the order was based on a sufficient affidavit can not arise. Jones, 93-617.

Where the affidavit of the surety fails to state that he is worth double the amount of the bond, an entry in the record, "Bond fixed at $25; bond filed," is not sufficient to show that the court received and approved the undertaking, and that the appellee thereby waived the defect. Distinguishing Hancock v. Bramlett, 85 N. C., 393. Wagner, 91—521.

An appeal without bond or affidavit allowed "by consent" will not be entertained. Kerns, 90-650.

APPEAL IN FORMA PAUPERIS-PRACTICE.-An affidavit upon which is founded an order allowing a convicted person to appeal in forma pauperis, under section 16 (The Code, section 1235), is fatally defective if it does not state that the application is in good faith. Tow, 103-350; 9 S. E. 411.

If an order is made allowing a defendant to appeal as a pauper, and the affidavit and certificate of counsel are not in the record sent to the supreme court, it will be presumed that they are in due form; but if they are sent up, and are not in due form, the appeal will be dismissed on motion of the appellee. Tow, 103-350; 9 S. E. 411.

Where the substance only of the affidavit is set out and the court sees it is insufficient the appeal will be dismissed on motion of the appellee, not as a matter of discretion, but as a matter of right. Jackson, 112-849; 16 S. E. 906.

The omission that the affidavit is made in good faith is fatal. Bramble, 121-603; 28 S. E. 269.

The allowance of a motion to dismiss an appeal for failure to observe the requirements of the statute is a matter of right and not of discretion; and. therefore, where the case on appeal simply shows that the defendant prayed an appeal and "upon filing his affidavit of his inability to give security for the cost of appeal," was allowed to appeal without bond, the appeal will be dismissed on motion. Harris, 114-830; 19 S. E. 154.

It is not necessary that the affidavit should state the name of counsel by whom the applicant is advised that he has reasonable ground for appeal. Perkins, 117-698; 23 S. E. 274.

Under Revisal, section 3278. the affidavit to appeal in criminal cases. without giving bond. is fatally defective where it omits the averment that it is "made in good faith." and such an appeal must be dismissed as a matter of right. Atkinson, 141-734; 53 S. E. 228.

JUDGE ONLY CAN ALLOW.-An appeal in forma pauperis can be allowed only by the judge and during the term. Gatewood, 125-694; 34 S. E. 543.

Sec. 27 (3279). Appeal granted, bail allowed defendant

It shall be the duty of the judge on filing the affidavit required in the preceding section, to grant the appeal without security for costs and for any bailable offense shall require the defendant to enter into recognizance in a reasonable sum to make his appearance at the first term of the superior court to be held in the county and to further answer the charge preferred.

Code, s. 1236; 1869-70, c. 196, s. 2.

Sec. 28 (3281). Appeal not to vacate judgment; stays execution.

In criminal cases an appeal to the supreme court shall not have the effect of vacating the judgment appealed from, but upon perfecting the appeal as now required by law, either by giving bond or in forma pauperis, there shall be a stay of execution during the pendency of the appeal.

1887, c. 191, s. 1; 1887, c. 192, s. 4.

Sec. 29 (3282). Judgment for fines docketed; lien as other judgments; execution issued.

When the sentence in whole or in part directs the payment of a fine, the judgment shall be docketed by the clerk and be a lien on the real estate of the defendant in the same manner as judgments in civil actions, and executions thereon shall only be stayed, upon