Appeal — Practice — New Trial.
1. Where there is no statement of the case and no error appears on the record in criminal actions, this court will, on appeal, affirm the judgment.
2. A new trial will not be granted where the judge who tried the cause went out of office without making up a case of appeal, unless it sufficiently appears that the appellant was guilty of no laches.
( State v. Orrell, Busb., 217; Isler v. Haddock, 72 N.C. 119, cited and approved.)
The facts are sufficiently stated by Mr. Justice ASHE in delivering the opinion. Verdict of guilty, judgment, appeal by defendant.
ASHE, J.
This is an indictment against the defendant for making an affray with one Elbert Murrell. He was tried and convicted at the spring term, 1878, of Buncombe superior court and upon the judgment being pronounced against him, he appealed to this court.
As there is no bill of exceptions or statement of that nature accompanying the record, according to the settled practice and long established rule of this court in criminal cases, the judgment below must be affirmed, unless upon looking into the record some error may be found therein; but upon inspection of this record we find no error. The judgment is affirmed. State v. Orrell, Busb., 217.
It was stated by counsel at the bar as an excuse why a statement of the case did not accompany the record, that the judge holding the court had gone out of office. According to the authority of the case of Isler v. Haddock, 72 N.C. 119, we would grant a new trial if it appeared from the case or by affidavit that the appellant was guilty of no laches in having his case made up for this court. But it is not made to appear to us whether he applied to the judge to make up the case or whether he or the judge was in default. There is no error. Let this be certified to the end that the case may be proceeded in according to law.
No error.