State v. . Divine and Another , 69 N.C. 390 ( 1873 )

Settle, J.

There is no case before us. The Act of 1869-’70, chap. 196, entitled, “ An act to enable poor persons to appeal to the Supreme Court in State cases,” give the right of appeal to insolvent defendants upon their complying with certain requisites specified in the Act. The record sent up states that “it appearing to the satisfaction of the Court here,, that the said John Divine and William Brooks are insolvent, they are allowed to appeal without security.”

The insolvency of the party is not alone sufficient to entitle him to the benefits of this act; it must also appear by the affidavit, which must be filed before the Judge can grant the appeal, that the defendant is advised by counsel that he has reasonable cause for the appeal prayed for, and that the application is in good faith. Both of these essential requisites are wanting in the record before us. We think that the affidavit should set forth the name of the counsel who advises that there is reasonable cause of the appeal. Otherwise, it would be in the power of a defendant to commit a fraud upon the Court, for it does not follow that the. counsel upon whom he relies is an attorney of the Court or any one learned in the law.

This construction is reasonable and can work no hardship upon insolvent defendants whose cases have merits.

We might stop here, but as this is the first case in which we have announced our construction of this act, it may save the defendants further trouble and expense to say that we have examined the whole record and find no error. The indictment seems to have been copied from Chitty’s Crim. Law, and we see no good ground of complaint either to the rulings of his Honor or the finding of the jury.

Pee Cueiam. Appeal dismissed.