The defendants did not serve their case within the time allowed; but on August 6 left a copy thereof at the office of the Solicitor of the district. No extension or waiver of time to serve the statement of case on appeal other than that contained in the appeal entries was made, and none was requested. The Solicitor, however, served amendments and exceptions to the defendants' statement and caused the same to be served on an attorney for the defendants, making, however, the following reservations:
"The undersigned Solicitor of the Fifth Judicial District, not waiving any rights, and specifically reserving and now reasserting exception by the State to the failure of the defendants to serve Statement of Case on Appeal within the time filed by the Court, and renewing its motion to strike the said Statement of Case on Appeal from the record, objects to the Statement of Case on Appeal as left at the Solicitor's office and offers the following exceptions or amendments thereto."
The Solicitor filed a written motion to strike out the statement of case on appeal for failure of defendants to make up and serve the same within the time filed by the court, serving notice of the motion on Herman L. Taylor, attorney for the defendants.
On the hearing defendants' attorney admitted that the statement of case on appeal was left in the Solicitor's office with his secretary on August 6, 1949, and that the attempted service was not within the 60 days fixed by the court. G.S. 1-282.
At the hearing, October 1, 1949, Judge Williams, finding these facts, allowed the motion and struck out defendants' statement of case on appeal.
The defendants have filed in this Court two petitions for certiorari: One on September 27, 1949, before the order of Judge Williams above recited; the other on October 10, 1949, after that event. Both are of the same import, and they may be considered here as one petition. For convenience, any reference to the "petition" will be understood as implying both. The petitions are as follows:
A supporting affidavit of Herman L. Taylor, attorney for the defendants, is as follows:
SEAWELL, J.
The fact that the defendants, convicted of a capital offense, have been, since the pronouncement of judgment, under sentence of death should inspire in all persons concerned in the further administration of justice the most careful attention to the duties resting upon them. But especially it should admonish those upon whom, by reason of their special relation to the defendants as attorneys, and who are also officers of the court, to exercise the utmost diligence in the performance of those duties, which are essential to appellate review, the making out and serving within the allotted time defendants' case on appeal, for which they are solely responsible. As practicing lawyers they are presumed to know this necessity and the consequence of inattention or failure; and they are charged with the knowledge of the procedure to be followed.
The affidavit of the attorney now pressing for certiorari pleads, as excusing the delay, a great press of business in the courts and elsewhere on other matters; that the stenographer's transcript of the trial contained 500 pages or more; that only the first volume, containing 365 pages, was received near the end of the first month; and the final 150 pages, more or less, was received a week before the time allotted for service expired. He adds that, by great diligence, the case on appeal had been completed and was ready for service on the afternoon of the last day of the period during which legal service could be made. The attorney then undertook to locate the Solicitor for the purpose of making personal service on him, and on being informed that he was not in his office went no further in his attempted service until the time had expired. He then attempted service by leaving a copy of the statement of the case on appeal at the office of the Solicitor. That method of service is authorized by the statute and would have been good if made in time by a proper officer. Cummings v. Hoffman, 113 N.C. 267, 18 S.E. 170; Roberts v. Partridge, 118 N.C. 355, 24 S.E. 15; McNeill v. Raleigh, etc., Ry. Co., 117 N.C. 642, 23 S.E. 268.
The attorneys for petitioners were not impeded or delayed by the absence of the Solicitor. The Court will take judicial notice of the fact that he is absent from his office much of the time in prosecution of the docket in various counties of his district, hence the liberal method of service prescribed by the statute.
What pressing duties the attorneys may have had in other matters, and other places, and the priority given them we need not inquire; but we can think of nothing more important and more pressing at this time than attention to the clients' appeal.
As to the voluminous character of the record, and the manner of dealing with it, we do not think that it presented an insurmountable obstacle to timely service, or one which the diligence demanded of the attorneys might not have overcome; or that service in the manner required by law might not have been made after the case admittedly was complete.
Rules requiring service to be made of case on appeal within the allotted time are mandatory, not directive. S. v. Moore, 210 N.C. 686, 188 S.E. 421; S. v. Lampkin, 227 N.C. 620, 44 S.E.2d 30; S. v. Nash, 226 N.C. 608 30 S.E.2d 596; S. v. Watson, 208 N.C. 70, 179 S.E. 455.
The petitioners aver that they have a meritorious defense. The Court is interested in that, of course. But the merit which excuses nonperformance of the specific duty under discussion does not lie in the soundness of the exceptions taken on the trial, but rather in the circumstances which render performance impossible or impractical.
The petition must be denied.
The gravamen of the present challenge to the validity of the trial is found in the two objections referred to in the petition: The alleged systematic exclusion of members of the Negro race from the jury lists of Pitt County and the consequent absence of Negroes from the panel which tried them; the admission in evidence of confessions of guilt by the accused which confessions they contend were not voluntary but were procured by illegal means.
Both these objections involve questions of invasion of constitutional rights which, in the instant case, can be presented only through matter extraneous to the record. Ordinarily in this situation resort may be had to writs of error coram nobis.
The common law writ of error coram nobis has been recognized and used in this State in similar situations from early times and is in common use elsewhere. Its authority here is referred to the statute G.S. 4-1, which adopts the common law as the law of this State when not modified, — with exceptions not applicable to this case, — and to the State Constitution, Article IV, Section 8, which gives this Court authority to exercise supervision over the inferior courts of the State. Authority for the writ, its nature and limitations, occasion for its exercise and relevant procedure are dealt with in the following cases and authorities: In re Taylor, 230 N.C. 566; In re Taylor, 229 N.C. 297, 49 S.E.2d 749; Roughton v. Brown, 53 N.C. 393; Lassiter v. Harper, 32 N.C. 392; Tyler v. Morris, 20 N.C. 625; Berry v. State, 22 Ind. 294, 173 N.E. 705, 72 A.L.R. 117; 3 Am. Jur., p. 766, sec. 1276; see also, Hysler v. Fla., 315 U.S. 411; Taylor v. Ala., 335 U.S. 252, 92 L.Ed. 1935, (anno., p. 1936). The writ of error coram nobis can only be granted in the court where the judgment was rendered. Ernst. v. State, 179 Wis. 646, 192 N.W. 65, 30 A.L.R. 681, headnote 5; Roughton v. Brown, supra; 3 Am.Jur., supra, sec. 1276.
Since here the authority for the writ sterns from the supervisory power given the Supreme Court in the section of the Constitution cited, it is necessary that an application be made to this Court for permission to apply for the writ to the Superior Court in which the case was tried. In re Taylor (supra), 230 N.C. 566, 569. It is granted here only upon a "prima facie showing of substantiality." and it is observed in the Taylor case last cited, "The ultimate merits of the petitioner's claim are not for us but for the trial court."
On consideration in the trial court, if the decision is adverse to the petitioners, the court will find the facts, and an appeal to this Court will lie as in other cases.
A full consideration of the nature and limitations of the writ and relevant procedure may be found in In re Taylor, 230 N.C. 566, and In re Taylor, 229 N.C. 297, both supra.
The space given to this somewhat incidental discussion is justified, we think, by the desire to make it clear to the petitioners that the writ of error coram nobis is available to them only if they can bring themselves within the purview of such a writ.
The petition for certiorari is denied.